Alito, J., dissenting
The main issue in Price Waterhouse—the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence that gender played a part.” Id., at 251.[1] And the plurality made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid.
Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse. In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sex-specific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes, J., dissenting).
To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians,
or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a
- ↑ Two other Justices concurred in the judgment but did not comment on the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id., at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id., at 294.
