30 NEWSWEEK.COM OCTOBER 04, 2019
JUSTICEemployees—those transitioning to men and those transitioning
to women—they are not favoring either sex.
Under this view, the LGBTQ plaintiffs are guilty of using a
“faulty comparator analysis,” to use the technical term used by the
employers’ attorneys. “[Gay skydiver Zarda] is wrong to compare
himself to a heterosexual woman,” write attorneys for Zarda’s for-
mer employer. “Zarda (a man attracted to the same sex) must be
compared to a lesbian woman (a woman attracted to the same
sex). Because employers that base decisions on employees’ sexual
attraction would treat both Zarda and the lesbian comparator the
same way, the comparator analysis reveals no sex discrimination.”
Similarly, they argue, “the alleged stereotype in this case—the be-
lief that people should be attracted to the opposite sex—is not a
sex-specific stereotype and does not treat employees of one sex
worse than the other sex.”
The Stakes
it is hard to look at these cases without contemplating
what might have been. Had President Obama been permitted
to fill the Supreme Court seat vacated by the death of Scalia in
2016 with D.C. Court of Appeals Judge Merrick Garland, the U.S.
might be a different place. The liberal-leaning faction of the
Court would now own five seats, and the employees’ chances of
prevailing in these cases would be strong. But Senate Majority
Leader Mitch McConnell famously refused to let Obama have
any Supreme Court appointment during the last 11 months of his
final term. (Obama won his second term with 51 percent of the
popular vote.) “Let’s let the American people decide,” McConnell
said at the time, alluding to the upcoming election.
The people then voted for Hillary Clinton by a margin of 2.8
million votes—48 percent to Donald Trump’s 46 percent. But
Trump won the electoral college and became president. Trump
replaced Scalia with Justice Neil Gorsuch in April 2017.1986
Meritor Savings Bank
v. Vinson. The Supreme
Court recognized for
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harassment and the
creation of a “hostile
working environment”
as a Title VII violation.1991
Civil Right Act of 1991.
Title VII amended to
specify that sex discrim-
ination is established
if it is “a motivating
factor” for an employ-
ment decision, even if
other, legitimate factors
also played a role.1998
Oncale v. Sundowner
Offshore Services, Inc.
In a unanimous ruling
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Antonin Scalia, the
Court ruled that Title VII
bars same-sex sexual
harassment, even though
such practices may not
have been envisioned
by the Congress that
enacted the Civil
Rights Act in 1964.“THIS IS A
MOMENT
OF TRUTH FORTEXTUALISTS.
IT’S EITHER
PUT UP
OR SHUT UP.”
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Price Waterhouse v. Hopkins. In the Court’s landmark,
“sex stereotyping” case, justices ruled that Ann Hopkins
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ners denied her a promotion because she was “overly
aggressive,” “macho,” and should learn to “walk more
femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry.”
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discrimination against gays and lesbians—because they
are attracted to people
of their own sex—is
the ultimate form of
sexual stereotyping.