Justice Neil Gorsuch’s majority opinion claims to apply a simple and straightforward test: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” But he refuses to consider what applying this simple—in reality, simplistic—test actually requires—and not just under Title VII, but under every nondiscrimination law that includes “sex” as a protected category, notably including Title IX. After all, Gorsuch’s argument is an argument about the logic of sex discrimination. Alas, he got that logic wrong. And had he considered what applying it to other cases would require, he might have been forced to reconsider his misguided theory. This mistaken theory of sex discrimination will have far-reaching negative consequences down the road.
Justice Neil Gorsuch’s majority opinion claims to apply a simple and straightforward test: ‘An employer violates Title VII when it intentionally fires an individual employee based in part on sex.’ But he refuses to consider what applying this simple—in reality, simplistic—test actually requires.
