Consider a generic action FOO. Suppose Alice and Bob are identical in all respect except that Alice is female and Bob is male; and Alice is heterosexual.
Both Alice and Bob do FOO. If you let Alice do FOO, but fire Bob for doing FOO, you have commited sex discrimination, because you would not have fired Bob but for his sex. However, if you were to fire both Alice and Bob for doing FOO, then you are treating both males and females equally, so there is no discrimination based on sex.
In the case where Bob is homosexual, FOO=experiences attraction to men. When Alice does this, she is fine. When Bob does this, he gets fired. Bob was fired for being male.
In the case where Bob is bisexual, FOO=experiences attraction to men and women. Bob still gets fired, but this time Alice does not do FOO, so there is no comparison to base a sex discrimination case on. If Alice were to do FOO, she would be bisexual, and fired under the same policy that Bob was. Either way, there is no case here where a male and female do the same thing but get a different result.
Thank you! I think I understand what you’re trying to say here, and it also clarifies why I found this response confusing.
I think this idea of a loophole is too caught up in actions leading to discrimination; and also the specific setups of the tests that the Supreme Court laid out in their ruling.
There need not be a specific counter-example within an organization to compare against when determining if an action was discriminatory or not. And moreover they weren’t really talking about “actions taken that are incongruous with sex stereotypes.” My understanding of the ruling (after reading it) is that if an employer fired you for being gay/bisexual, even just for stating the fact that you are, that would still amount to discrimination based on sex stereotypes.
Then again, I’m sure finer legal minds than mine will find any such loopholes that do exist over the course of the next two years. >_<
Both Alice and Bob do FOO. If you let Alice do FOO, but fire Bob for doing FOO, you have commited sex discrimination, because you would not have fired Bob but for his sex. However, if you were to fire both Alice and Bob for doing FOO, then you are treating both males and females equally, so there is no discrimination based on sex.
In the case where Bob is homosexual, FOO=experiences attraction to men. When Alice does this, she is fine. When Bob does this, he gets fired. Bob was fired for being male.
In the case where Bob is bisexual, FOO=experiences attraction to men and women. Bob still gets fired, but this time Alice does not do FOO, so there is no comparison to base a sex discrimination case on. If Alice were to do FOO, she would be bisexual, and fired under the same policy that Bob was. Either way, there is no case here where a male and female do the same thing but get a different result.