Bostock and Textualism: A Response to Berman and Krishnamurthi

Abstract

In Bostock was Bogus: Textualism, Pluralism, and Title VII, Mitchell Berman and Guha Krishnamurthi argue that Bostock v. Clayton County rested on a defective understanding of causation. An employer who discriminates against LGBT people is not motivated by the employee’s sex, but rather by the employee’s sexual orientation. They mistakenly take the linguistic happenstance of a separate term for gender-atypical behavior – here, “homosexuality” – to subtract those whom the term describes from the statute’s protection. Parallel conjunctions of discriminations do not balance out. If they did, the statute could be nullified in all of its applications by allowing employers to discriminate against those, male or female, black or white, who seek jobs inconsistent with the traditional social role of their race or sex.

Keywords: Bostock v. Clayton County, Mitchell Berman, Guha Krishnamurthi, discrimination, gay rights

JEL Classification: k10, k19, k30, k39