Monday, June 29, 2020

It Took Some Doing but The Federalist Managed to Offer the Most Idiotic Response to the Bostock Ruling

Jacob Roth
Jacob Roth - What's with all the booze?
via YouTube
Monday, per The Federalist: Gorsuch’s Ruling Demands Employers Allow Sexual Harassment which is subtitled:
What many commentators have missed is that the Bostock opinion provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII.
The author of this stupidity is Jacob Roth who claims to be a lawyer (JD, UVa). Mr. Roth does not have a record at Martindale.com nor does he appear as counsel on any federal docket. Roth is wrong on both counts. Sexual harassment is still prohibited and sexually segregated facilities continue not to violate Title VII.

On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County that workplace discrimination on the basis of sexual orientation or status as transgender amounted to impermissible discrimination on the basis of sex.

Jacob Roth has found a problem:
One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.

The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. …
On June 14, 2020, prior to the ruling in Bostock, if someone were treated differently due to their gender then they were a victim of workplace discrimination pursuant to Title VII of the Civil Rights Act of 1964. Therefore, were Jacob Roth's strained hypothetical remotely valid, then it would have been just as valid on June 14.

It was not valid then and it is not valid now. The ruling in Bostock only applies if Roth's example is a transgender woman. In that case she could be fired on June 14 but not after June 15, 2020.

Mr. Roth's careful analysis is quite verbose. Yet it does not become any more logical:
…Gorsuch declared that male same-sex attraction is the “same thing” as female opposite-sex attraction, so too does his logic require that a man exposing his body to women is the same as a woman exposing her body to women.
Despite the fact that Roth has it in quotes, the words “same thing” are not to be found in Justice Gorsuch's opinion for the majority. Gorsuch never compared homosexual attraction to heterosexual attraction.

What the Court's majority concluded is that discrimination on the basis of sexual orientation is discrimination on the basis of sex as that applies to Title VII.

Gorsuch wrote:
There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decision making.
It is all pretty simple if one has critical thinking skills. Had Mr. Roth made a compelling argument that neither sexual orientation nor transgender status comprise sex (in accordance with Title VII) then I would disagree but would probably presume that Roth is an Earthling.

Opposing the ruling with an intellectually dishonest premise of Pandora's Box might gain Mr. Roth some attention and might even attract people to his YouTube channel. Nevertheless, it makes no sense whatsoever. I cannot presuppose that Roth is an Earthling. I cannot reliably determine Jacob Roth's home planet.

I am feeding Jacob Roth's personality disorder because the broader issue is the credibility of the outlet. From where does The Federalist find these crackpots, kooks and cranks? If there are actually editors at The Federalist then what do they do? They sure as shit aren't editing.

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