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05/27/2021

A Response to Andrew Hyman re Bostock v. Clayton County
David Weisberg

I would make three points in response to Andrew Hyman’s comment on my recent post re Bostock vClayton County.

First: Mr. Hyman says that the Court’s opinion in Oncale vSundowner Offshore Services leaves it “unclear” as to “what the sexual preferences of [Mr. Oncale’s] harassers were, and it’s also unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  (How would a court even begin to decide how Mr. Oncale would have been treated if he had been a female suspected by co-workers of being a lesbian?)  Oncale is unclear on these points because they’re all irrelevant to the Court’s decision.  Oncale holds that an employer is required, under Title VII, to provide a workplace free of sexual harassment, whatever the sex or sexual orientation of the victimized employee or the harassing employees.  The issues cited by Mr. Hyman are irrelevant in cases of workplace sexual harassment.

Secondly: Mr. Hyman relies on an argument that Justice Alito makes in his Bostock dissent.  (Alito slip op. 17.)  The argument, in Mr. Hyman’s words, is this: “[I]f an employer has four employees, two males and two females, including one homosexual person of each gender, and the employer only fires the latter two, then obviously that does not indicate any bias or prejudice whatsoever against one sex or the other.”  There are two problems with this argument.

One problem is that the conclusion can’t be reconciled with the conclusion, per the Court’s unanimous decision in Oncale, that if that very same employer permits those very same two homosexual employees to be sexually harassed in the workplace, the result would be two Title VII violations, whether or not the employer has “any bias or prejudice whatsoever against one sex or the other.”  In cases of workplace sexual harassment, the employer’s bias or prejudice (or absence of bias or prejudice) towards a particular sex is entirely irrelevant.  The only relevant factors are (i) how the targeted employee is treated by other employees in the workplace, and (ii) what steps the employer takes to end the harassment.

The other problem with the argument advanced by Justice Alito and Mr. Hyman is that it requires jettisoning well-established precedent relating to discrimination because of an individual’s religion.  Suppose an employer has a hundred employees, fifty Jews and fifty Christians; exactly one of the Jews wears a star of David, and exactly one of the Christians wears a cross.  The employer, who dislikes religious symbols in the workplace, fires the Jew who wears the star of David and the Christian who wears the cross.  Accepting the logic of Justice Alito and Mr. Hyman, the employer’s action does not indicate any bias or prejudice against Christians or Jews.  And they are correct—the employer’s action indicates only a dislike for religious symbols in the workplace.  But the EEOC cites numerous cases where exactly such behavior was deemed to violate Title VII. 

The only conclusion to be drawn is that absence of employer bias or prejudice against Christians or Jews does not guarantee compliance with Title VII.  Where a particular characteristic (wearing a star of David or a cross) is sufficiently closely related to religion, discriminating against those who wear the symbol amounts to discrimination because of the individuals’ religion.  In the same way, where a particular characteristic (having sexual relations with persons of one’s own sex) is sufficiently closely related to sex, discriminating against those who have homosexual relations amounts to discrimination because of the individuals’ sex.  

Thirdly: Nothing in Mr. Hyman’s comment, or in the article by Professors Barnett and Blackman that he cites, or in the two Bostock dissents, offers a plausible reading of Title VII that would provide employees who are or are believed to be homosexual with only some, but not all, of the statute’s protections.  I submit there is no such plausible reading.  More generally, there is no plausible reading of Title VII that would provide any individual who is being discriminated against because of any relevant characteristic—race, color, religion, sex, or national origin—protection against some prohibited forms of discrimination, but not against all prohibited forms of discrimination.  If employees of either sex (including male employees who are or are believed to be homosexual) are entitled under Title VII to a workplace free of sexual harassment, they are equally entitled to all other statutory protections.  Therefore, if Oncale is correct, the result in Bostock is correct (despite the numerous flaws in the latter opinion).