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05/22/2021

A second look at Bostock v. Clayton County
David Weisberg

Bostock v Clayton County, 590 US __ (2020), holds that Title VII is violated when an employer discriminates against persons who are either homosexual or transgender.  Justice Alito (joined by Justice Thomas) and Justice Kavanaugh dissented.  I argued on this blog (herehere and here) against the result the Court reached, but I’ve changed my mind.  The majority opinion, however, omits what I now think is the strongest argument supporting its result, so I’d like to cure both my past error and the majority’s omission.

Justice Gorsuch’s deeply flawed opinion for the Bostock majority does note the relevance of Oncale v Sundowner Offshore Services, 523 US 75 (1998).  In Oncale, a unanimous Court decided, in an opinion by Justice Scalia (Justice Thomas concurring separately), that sexual harassment in a workplace where the harassed employee and the harassing employees were all men nevertheless violated Title VII.  In relevant part, Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex[.]” 

Justice Scalia noted that the words “terms” and “conditions” in the statute were not used “in the narrow contractual sense[.]”  (523 US 78.)  He quoted with approval the Court’s opinion in Harris vForklift Systems, 510 US 17, 21 (1993): “When the workplace is permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.”  (Internal quotation marks and citations omitted.)  If Title VII prohibits workplace sexual harassment of women and if, as Justice Scalia asserts, it also “protects men as well as women” (523 US 78), then it follows logically (as Justice Alito notes in his  Bostock dissent, slip op. 36.) that Title VII prohibits workplace sexual harassment of men.  Neither of the two Bostock dissents questions the correctness of Oncale.

In Bostock, the majority and the dissenters vigorously debate whether or not terminating the employment—not, as in Oncale, workplace sexual harassment—of an individual who is or is believed to be homosexual or transgender amounts to discrimination “because of such individual’s … sex[.]  The dissenters insist, and the majority concedes, that sexual orientation and gender identity are both conceptually different from sex, but they disagree over whether or not the former two concepts are sufficiently closely related to sex to garner the protections of Title VII.  Given the Oncale precedent, they were debating the wrong question.  They should have asked: Is there any possible reading of Title VII that would provide an individual with only some, but not all, of its protections?

Mr. Oncale was sexually harassed in his workplace because his fellow employees believed he was gay.  One might question whether or not being gay, or appearing to others to be gay, is sufficiently related to sex to be protected under Title VII.  But one thing cannot be questioned: Any individual who is entitled to protection under any part of Title VII is entitled to protection under every part of Title VII.  It is impossible to read Title VII as providing that there are certain individuals who are entitled, because of their sex, to be free of discrimination in the “terms” and “conditions” of employment, but not to be free of discrimination regarding an employer’s “fail[ure] or refus[al] to hire or to discharge any individual,” or regarding “compensation” or “privileges of employment.”  Nothing in the statute implies, suggests, or even hints that certain individuals might be entitled to some of the statute’s protections, but not to all of them.     

Therefore, if Mr. Oncale and others like him—namely, individuals who either are or are perceived to be homosexual—are entitled under Title VII to a non-sexually-hostile workplace, they are also entitled to all other Title VII protections.  That is, under Title VII they can’t not be hired because of their actual or perceived homosexuality, they can’t receive less compensation or other reduced privileges of employment for that reason, and they also can’t be fired for that reason.  (The foregoing is, in my view, the decisive argument that the Bostock majority opinion misses entirely.)

The Bostock dissents imply that an employer must (per Oncale) provide homosexual employees a non-sexually-hostile workplace, but is nevertheless free to reject all homosexual job applicants.  If that is the law, no rational employer (except perhaps one catering specifically to homosexual customers) would ever knowingly hire any homosexual or anyone who might appear to be homosexual.  Why run the risk of a Title VII complaint for a hostile workplace?  Thus, the dissenters ask us to accept that Congress passed a law providing an important employment protection (a non-sexually-hostile workplace) to homosexuals, but employers may lawfully avoid providing that protection by never hiring homosexuals.  To echo Justice Scalia: Grotesque.          

Oncale also provides, by implication, an affirmative answer to the question whether transgender individuals are entitled to Title VII protection.  Consider this hypothetical: A transgender person is hired, and the employer either doesn’t know or doesn’t care that the individual is transgender.  But when other employees learn the new employee is transgender, sexual harassment erupts.  I believe that, following Oncale, the resulting sexually-hostile workplace violates Title VII if the employer takes no remedial steps.  But, again, if the transgender employee is entitled under Title VII to a non-sexually-hostile workplace, then transgender individuals are entitled to the full panoply of Title VII protections.

In my opinion, Oncale implies that the following test should decide whether an arguably sexual characteristic merits Title VII protection: If a reasonable person would find that an individual with the relevant sexual characteristic is at least as likely to be the victim of workplace sexual harassment as an individual who is or appears to be homosexual, the statute fully applies.  The result in Oncale compels the result in Bostock, and rejection of Bostock requires rejection of Oncale, because Title VII does not contemplate that certain individuals will receive only some, but not all, of the statute’s protections.