The Supreme Court’s decision in Bostock v. Clayton County was an important victory for gay and transgender workers—but the Court’s textual analysis has failed to persuade a number of thoughtful commentators, and it threatens to leave anti-discrimination law in disarray. The root of the problem is that Bostock trumpeted a “simple test” of but-for causation that could not alone explain the correctness of the results that the Court reached. This explanatory gap not only has left Bostock’s holding vulnerable to attack, but also has engendered uncertainty about the many disparate-treatment issues for which Bostock now provides the governing precedent. Indeed, because Bostock took it upon itself to interpret Title VII from textualist first principles, its analysis will orient—and perhaps disorient—judicial approaches to all manner of disparate-treatment claims for many years to come.
What disparate-treatment law needs, but the Court has thus far failed to provide, is a coherent, general, and textually grounded account of what it means for a decision to be made “because of” a protected characteristic—one that accords with Bostock’s motivating intuitions, but that transcends its overly simplistic account of its own reasoning. Drawing on a venerable body of work in analytic philosophy concerning “determinable” properties and their corresponding “determinates,” this Article develops an account that meets that need. In brief, this “dimensional” account of disparate treatment recognizes a decision as being made “because of [an] individual’s X” whenever the decision is motivated by a property that characterizes the individual in the dimension of X—regardless of whether a different decision would have been made if the individual had belonged to any other determinate class that is defined along that dimension. After introducing and defending this analysis, the Article traces its implications for a wide range of current controversies—involving bisexuality, pregnancy, race and gender stereotypes, and more. Finally, the Article defends the dimensional account and its implicit application in Bostock on textualist terms. It argues that the account best captures the meaning that an “ordinary reader” would ascribe to Congress’s enactment of Title VII—so long as the reader construes the statute in light of characteristic features of legislative communication, as sophisticated accounts of modern textualism would demand.
Bostock v. Clayton County delivered a landmark victory to advocates of social equality and workplace fairness.[1] Discrimination against gay and transgender employees, the Supreme Court pronounced, violates the Civil Rights Act of 1964.[2] Two years later, however, even many who celebrated Bostock’s upshot have confessed doubts about the Court’s asserted justification for bringing it about: the now-famous claim that firing someone because they are gay or transgender logically entails firing them “because of their sex” as well.[3] The first wave of objections to that analysis came from avowed conservatives who, perhaps predictably, condemned it as an abuse of their favored textualist methodology.[4] But more striking is the second and more recent wave of criticism, in which some of the most thoughtful progressive scholars have now denounced that same analysis as either fallacious or, what is not much better, a façade for value-laden choices that the majority obscured from view.[5]
Although these criticisms are ultimately misplaced (or so I will argue), they underscore the need for something that the Court has indeed failed to provide: a coherent, general account of what it means for an action to be taken “because of” an attribute in the sense relevant to claims of disparate treatment. To be sure, Bostock purported to answer just that question by appealing to the familiar idea of “but-for” causation.[6] And in so doing, it arguably built on other recent decisions construing anti-discrimination requirements in similar terms.[7] But the critics are right to say that this “simple test”[8] is not nearly as simple as advertised. As the Bostock dissenters were quick to point out, if Gerald Bostock had been a woman rather than a man—but had still been attracted to people of the same sex—he (now she) would still have been fired.[9] “But for” Bostock’s sex, then, his fate might have been just the same: everything depends on which other traits one chooses to hold constant in the counterfactual comparison. Without principled criteria for making such judgments, Bostock’s test is not simple so much as it is vacuous.
But the problem is not just that one Supreme Court opinion—even a salient and consequential one—may be analytically unsatisfying. The more fundamental problem is that Bostock at once enshrined a formalistic approach to disparate-treatment law and set up anyone who seeks to implement that approach in a coherent way for failure.[10] Courts and scholars are already seeking to “reorient[]” this area of law around the “but-for principle” trumpeted in Bostock.[11] But if that account of “because of” is garbled—or, at the very least, seriously incomplete—it will only sow more confusion and suspicion as it is extended to the host of other issues for which Bostock now provides the leading precedent. If the ascendant, textualist vision of disparate-treatment law is instead to guide courts to principled results (and if Bostock’s own results are to be satisfactorily defended as such), that vision needs to include more than a pat equation of “because of” with but-for causation. It needs to incorporate a careful and convincing account of the formal relations on which a formalistic doctrine inevitably relies.
This Article undertakes to supply that missing analysis. It develops the account of “because of” that the Court’s approach to disparate-treatment law requires, but that the Court has failed to clearly articulate. And, importantly, it does so within the textualist parameters embraced by a majority of the sitting Justices (and by all of the Bostock opinions).[12] The most immediate payoff is to vindicate Bostock’s result—and what I will contend is its implicit logic—against the critics who claim that the ruling cannot be defended on its own textualist terms.[13] If I am right, conscientious textualists ought to accept Bostock as rightly decided, and everyone who feels trapped between nagging doubts about the majority’s textual argument and anxiety about the consequences of rejecting it can breathe a sigh of relief.[14] At the same time, the account that I develop here clarifies a wide variety of current controversies about the boundaries of anti-discrimination protections and puts a common frame on these diverse disputes, thereby outlining “the contours of a post-Bostock Title VII.”[15]
Consider a sampling of the questions that are newly arising, or will now be recast, in Bostock’s wake. If discrimination against gays and lesbians inherently involves sex discrimination under the “but-for” theory, does discrimination based on pregnancy as well?[16] What about discrimination against people who are bisexual or pansexual (and whose aggregate set of sexual attractions or practices would thus offend an employer irrespective of the employee’s own sex)?[17] Does Bostock’s protection for transgender individuals—whom the Court understood to be “persons with one sex identified at birth and another today”[18]—extend to nonbinary people, who identify neither as men nor as women today?[19] What does Bostock’s “but-for” analysis mean for the “sex stereotyping” theory articulated in Price Waterhouse v. Hopkins,[20] which was emphasized by advocates and lower courts but nearly ignored in the Court’s opinion?[21] And what does Bostock’s analysis mean for protected characteristics unrelated to sex, gender, and sexuality? For example, does discrimination based on cultural practices that have a racial valence constitute discrimination “because of [an] individual’s race”?[22] Does discrimination based on a person’s status within the Indian caste system constitute “national origin” discrimination?[23] And how should a Bostock-style textualist evaluate the panoply of discrimination claims based on intersectional identities or the conjunction of a protected trait with an unprotected one (as in so-called “sex-plus” cases)?[24]
The beginning of wisdom on all of these issues, I will suggest, is conceptual clarification. As is characteristic of anti-discrimination laws, Title VII prohibits certain actions with a certain connection to certain properties of a person; in particular, it prohibits certain adverse employment actions to be taken “because of [an] individual’s race, color, religion, sex, or national origin.”[25] Both the Court and commentators have generally read that phrase as if each property were merely a shorthand for its range of “standard” values—so that “because of such individual’s race,” for example, means “because of such individual’s being white, being Black, being Asian,” and so forth. On reflection, however, that is not the only or even the most natural interpretation of these words. Drawing on a rich but untapped body of philosophical work that examines “determinable” properties and their corresponding “determinates,” I will argue that the statute is better read to prohibit making decisions based on any facts about what a person is like in the named dimensions. I term this the “dimensional account” of disparate treatment.
On this understanding, the fact of a person’s being Black is a prohibited ground of decision-making, but so, too, is the fact of their being of a different race than their spouse, or the fact of their being of the same race as most existing employees. A decision made on any of these grounds is made on account of the person’s race in the requisite sense: it is made based on a fact about what they are like “race-wise,” or in respect of race. And that, in essence, is why Bostock was rightly decided: not because Gerald Bostock would have been treated better if his sex had been female, as the Court insisted, but because he would have been treated better if his sex had been different than the sex of his desired romantic partners—full stop. In short, disparate-treatment prohibitions make it unlawful to disfavor people because of properties—including relational properties—that they possess partly in virtue of how they stand in the dimensions enumerated in the statute. This account makes sense not only of Bostock, but also of the various other controversies noted above. And it puts causal counterfactuals in their place: an evocative tool for describing the role of a given attribute in a decision, but not the fundamental determinant of whether the attribute played a role or did not.
Of course, it is one thing to articulate a theory and another to ground it in positive law. I close that gap in two ways—one less ambitious, and one more so. First, I will contend that the account developed here captures what Bostock itself must be taken to have held in order for its own reasoning to make sense. In fact, despite repeatedly touting its “simple test,” the Court retreated at key moments to the intuitions that the dimensional account grounds, formalizes, and develops. So long as Bostock is good law, then, that account should be taken as a sympathetic reconstruction of the existing law as well. Second, I will contend that the dimensional account also captures the “ordinary meaning” of Title VII in the legally relevant sense—notwithstanding the oddity of describing anti-gay practices as “sex discrimination” in everyday speech—and thus that the account would deserve textualists’ allegiance even if it could claim no authority in Bostock (and, equivalently, that Bostock itself was rightly decided insofar as it should be read to incorporate this account).
With this last argument, I intervene not only in the debate over disparate-treatment law but in the cross-cutting debate over textualism as well. Bostock has quickly become ground zero for analysis of the textualist approach to statutory interpretation; it has spawned theoretical defenses, critiques, and even a literature that aims to ascertain the relevant facts about “ordinary meaning” by empirical means.[26] And it has already become a principal lens through which students encounter questions of interpretive method.[27] I will use the dimensional account to highlight a critical aspect of the methodological debate that, with due respect, all sides have given short shrift. As I will explain, the theoretical premises of modern textualism commit textualists to seeking not the meaning of a free-floating phrase, but rather the meaning of a legislative utterance containing that phrase. That difference matters because the hypothetical “ordinary reader” who undertook the latter inquiry would necessarily account for the characteristic modularity and generality of legislative communication. With respect to Title VII, that means they would seek a general analysis of “because of such individual’s X,” rather than consulting their own linguistic intuitions about one or another particular case considered in isolation. The dimensional account supplies just such a general analysis; few of Bostock’s textualist critics even try to do so. The dimensional account thus not only has a strong claim to be accepted on textualist grounds, but also exemplifies how reading a statute like a law may prove essential to faithfully implementing textualists’ methodological commitments.
Although my argument proceeds under textualist premises, I do not mean to imply either that I favor textualism as an original matter or that my analysis should be of interest only to those who do. The question of “[w]hether our system is textualist, intentionalist, purposivist, or something else” is distinct from the question of what it would be best for it to be.[28] And within our extant legal system, what a statute means in a textualist’s sense is undoubtedly at least one of the important determinants of its legal effect (whether that represents a salutary feature of our system or not).[29] Moreover, several of the current Justices purport to give this particular consideration special priority.[30] So there are powerful reasons for concerning oneself with how a textualist ought to resolve important questions, and even for taking the fruits of that inquiry to bear on the legal soundness of different possible answers, regardless of one’s own affinity for textualism and its purported justifications.
The Article unfolds over four parts. In Part I, I briefly explain why analyzing disparate treatment solely in terms of but-for causation, as Bostock purported to do, is untenable. In Parts II and III, I develop the interpretation of “because of such individual’s X” introduced above and unspool its implications for a range of familiar and novel issues in disparate-treatment law. Finally, in Part IV, I return to Bostock and sexual-orientation discrimination in particular in order to develop and rebut the concern that the dimensional account fails to accord with the “ordinary meaning” of the statutory text with respect to that specific form of discrimination.
[1]. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
[3]. Id. at 1735, 1737, 1754; see 42 U.S.C. § 2000e-2(a)(1). For reasons of clarity and accuracy, I use the singular “they” in this Article. Cf. Bryan A. Garner, Garner’s Modern English Usage 196 (2016) (noting that “resistance to the singular they is fast receding” and that it is “the most convenient solution” to a difficult problem).
[4]. For criticisms in that vein, see, for example, Josh Blackman & Randy Barnett, Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases, Nat’l Rev. (June 26, 2020, 6:30 AM), https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-
textualism-surprises-disappoints [https://web.archive.org/web/20220412183111/https://www.national
review.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints]; Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Soc’y Rev. 158, 160–62 (2020); and Ed Whelan, A ‘Pirate Ship’ Sailing Under a ‘Textualist Flag,’ Nat’l Rev. (June 15, 2020, 1:01 PM), https://www.nationalreview.com/bench-memos/a-pirate-ship-sailing-under-a-
textualist-flag [https://web.archive.org/web/20220318235256/https://www.nationalreview.com/bench-
memos/a-pirate-ship-sailing-under-a-textualist-flag].
[5]. See, e.g., Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. 67, 79–120 (2021); Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 129–70; David A. Strauss, Sexual Orientation and the Dynamics of Discrimination, 2020 Sup. Ct. Rev. 203, 203–11; Cass R. Sunstein, Textualism and the Duck-Rabbit Illusion, 11 Calif. L. Rev. Online 463, 474–75 (2020).
[6]. See Bostock, 140 S. Ct. at 1739.
[7]. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 350 (2013); see also Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1623–25, 1641–44 (2021) (arguing that these cases, together with Bostock, stand for a “but-for principle” that is now central to anti-discrimination law). Although Bostock certainly pointed to Gross and Nassar as authority for its “but-for” test, see Bostock, 140 S. Ct. at 1739, their common holding—that, in a mixed-motive case, the statutorily prohibited reason must be decisive—does not actually say much of anything about Bostock, where the question was whether a particular reason is prohibited at all. See infra note 292.
[8]. Bostock, 140 S. Ct. at 1743, 1747–49.
[9]. See id. at 1762–63 (Alito, J., dissenting).
[10]. For an account of Bostock emphasizing and defending its formalistic mode of analysis, see Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265, 279–82, 290–307 (2020).
[11]. See, e.g., Eyer, supra note 7, at 1621–22.
[12]. See Franklin, supra note 5, at 120 (noting “that all of the opinions in Bostock—the majority and the two dissents—embrace textualism” and situating that fact in the larger context of textualism’s ascendancy).
[13]. See, e.g., Berman & Krishnamurthi, supra note 5; Blackman & Barnett, supra note 4; Whelan, supra note 4.
[14]. The academic literature on the question addressed in Bostock is, of course, extensive. I identify the prior suggestions with the most affinity to mine and contrast those approaches below. See infra note 67 and Section III.A. For now, suffice it to say that the commentary favoring Bostock’s result on textualist grounds mostly defends and develops (or, for that matter, pioneered) the form of counterfactual argument employed by the Bostock majority. 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, 343–46 (2017); Katie R. Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63, 73–80 (2019); Grove, supra note 10, at 281–82; Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208–11 (1994) [hereinafter Koppelman, Sex Discrimination]; Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 8–9 (2020) [hereinafter Koppelman, Subtractive Moves]. On the other side of the debate, commentators have criticized Bostock (and the commentary preceding it) for either botching the counterfactual analysis or failing to capture the ordinary meaning of the text (or both). See sources cited supra note 5. And meanwhile, others have defended the result that Bostock reached but do not claim (or, in fact, outright deny) that their arguments show Bostock to be sound on textualist premises. See, e.g., Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. on Regul. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib [https://perma.cc/R6RP-PP7P]; Robin Dembroff, Issa Kohler-Hausmann & Elise Sugarman, What Taylor Swift and Beyoncé Teach Us About Sex and Causes, 169 U. Pa. L. Rev. Online 1 (2020). To my knowledge, no prior commentary develops the analysis of Title VII’s “because of” criterion that I advocate here, applies it to Bostock, or defends it as an account of the “ordinary meaning” relevant to textualism.
[15]. Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, 134 Harv. L. Rev. F. 456, 471 n.87 (2021) (“[E]ven under textualist reasoning, it is sufficiently early in the life of Bostock that we do not yet know the contours of a post-Bostock Title VII.”).
[16]. See infra Section III.C.
[17]. See infra Section III.B. Although some use “bisexual” and “pansexual” interchangeably, others take “pansexual” alone to encompass attraction to individuals who do not identify as either male or female. See generally Christopher K. Belous & Melissa L. Bauman, What’s in a Name? Exploring Pansexuality Online, 17 J. Bisexuality 58 (2017).
[18]. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1746 (2020).
[19]. See infra Section III.B.
[20]. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
[21]. See infra Section III.D.
[22]. See infra Section III.E.
[23]. See infra Section III.C.
[24]. See infra Section III.C.
[25]. 42 U.S.C. § 2000e-2(a)(1).
[26]. See, e.g., Berman & Krishnamurthi, supra note 5, at 125 (arguing that those who think “that Bostock reached the legally correct result . . . have strong grounds to reject textualism”); Sunstein, supra note 5 (using Bostock to illustrate the alleged indeterminacy of textualist arguments); Franklin, supra note 5 (similar); Grove, supra note 10 (using Bostock to illustrate different flavors of textualism, and defending the majority’s “formalistic” variant); see also infra notes 86, 233, 262–65 and accompanying text (discussing survey research).
[27]. See, e.g., John F. Manning & Matthew C. Stephenson, Legislation and Regulation 115–39, 146–50, 219–22 (4th ed. 2021); William N. Eskridge Jr., James J. Brudney & Joshua A. Chafetz, Cases and Materials on Legislation and Regulation 35–56 (6th ed. Supp. 2021).
[28]. William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1116 (2017); cf. id. (making the further claim that this question is itself a legal one).
[29]. Cf. Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1307 (2015) (concluding that there are “multiple linguistically and legally plausible senses of, and thus referents for, claims of legal meaning”); Franklin, supra note 5, at 120 (noting how Bostock has been taken as “confirmation of Justice Elena Kagan’s endlessly quoted observation that ‘[w]e’re all textualists now’ ”).
[30]. See, e.g., Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.”); id. at 1836 (Kavanaugh, J., dissenting) (“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.”).
* Assistant Professor of Law, Harvard Law School. For helpful comments and discussion, I thank Larry Alexander, Erin Beeghly, Mitchell Berman, Jessica Clarke, Richard Fallon, Sherif Girgis, John Goldberg, Deborah Hellman, Adam Hosein, Max Kistler, Michael Klarman, Issa Kohler-Hausmann, Andrew Koppelman, Guha Krishnamurthi, Jed Lewinsohn, Kasper Lippert-Rasmussen, Anna Lvovsky, James Macleod, John Manning, Andrei Marmor, Todd Rakoff, Daphna Renan, Zalman Rothschild, Benjamin Sachs, Matthew Stephenson, Cass Sunstein, and Daniel Wodak; participants in the Harvard Law School Faculty Workshop and the Penn Law & Philosophy Workshop; and Isaac Green, Nathan Raab, and Catherine Willett, who also provided valuable research assistance. This project was supported by the Harvard Law School Summer Research Fund.