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05/31/2021

Addressing Three New Points About Bostock and Oncale
Andrew Hyman

David Weisberg takes the position that the Civil Rights Act of 1964 bans discrimination against men or women based on sex even if there is no prejudice or bias against either sex.  He makes three points in response to my recent post about Bostock v. Clayton County and Oncale vSundowner Offshore Services.  I'd like to reply to each of them.

First: Mr. Weisberg says that some of what I wrote was legally irrelevant, and he is correct about that.  I wrote, “Apparently, Oncale was not actually gay.  It’s unclear from the Court’s opinion what the sexual preferences of his harassers were….”  All of that was legally irrelevant, but it’s still good to avoid creating misimpressions about Oncale, and about his co-workers, and that’s all I was trying to do there.  I also said that it’s “unclear how Oncale would have been treated if he had been a female suspected by those co-workers of being homosexual.”  Mr. Weisberg asks: “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?”  Well, juries determine intent all the time.  The Court said in Oncale, “A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”  If it’s not a mixed-sex workplace, then the plaintiff might offer other kinds of evidence, such as whether the words spoken by the harassers were gender-specific, or instead were generically homophobic. Perhaps a plaintiff could also prove that the harassers were driven by their own homosexual proclivities (of the Deliverance variety), suggesting that women would have been safe.

Second: Mr. Weisberg also brings up the statute’s application to religious attire instead of sex, and I would simply say that there are only two sexes (within the original meaning of the statute) whereas a single religion can include multiple informal sects, some of which may differ from each other only as to attire, and the statute has been reasonably interpreted as banning job discrimination against each one of those sects.  Sex and sects are therefore not easily compared.

Third: I again agree that Oncale was entirely correctly decided.  But the cases are quite different, assuming that, in Oncale, there was gender prejudice or bias against Oncale, while in Bostock there was no gender prejudice or bias against Bostock.  For what it's worth, this is simply an issue of the original meaning of the Civil Rights Act of 1964, and I am not expressing any opinion at all about whether that federal law should be, or should have been, broadened.

UPDATE: DAVID WEISBERG replies:

Putting aside issues Andrew Hyman now concedes are irrelevant, I’ll focus first on his take on precedents regarding religious symbols and garb. He thinks those precedents are inapposite because, while there are only two sexes, there are many religions and sects, and “some may differ from each other only as to attire[.]”  This is, once again, irrelevant, which can be shown by re-working Justice Alito’s demonstration that an employer could reject all homosexual job applicants without ever learning their sex.  (Alito Bostock slip op. 9.)  An employer could, before setting eyes on any applicant, ask: “Do you ordinarily wear any religious symbol or garb visible to others?  If your answer is ‘yes’, would you insist on wearing that symbol or garb despite our rule prohibiting employees from wearing such in our workplace?”  If the second answer is also ‘yes’, the applicant is rejected.  The employer doesn’t know the individual’s particular religion, yet every rejection (possibly excepting employers that are religious institutions) violates Title VII.  This result implies that, if a characteristic (e.g., wearing a religious symbol or garb) is not among the protected characteristics listed in the statute, but is nevertheless sufficiently closely related to one that is listed (“religion”), it will be protected under the statute.

Mr. Hyman says that there was no “gender prejudice” or “bias” against the Title VII complainants in Bostock.  Those words are not in the statute.  Also not in the statute are words to this effect: "Homosexual employees are entitled to terms or conditions of employment that include a workplace free of sexual harassment, but are not entitled to any other statutory protections."  Oncale holds that homosexual employees are indeed entitled to a workplace free of sexual harassment.  This implies that homosexual behavior (just like wearing a religious symbol or garb) is sufficiently closely related to a protected characteristic—“sex” (“religion”)—to be itself protected under the statute. 

The position taken by Mr. Hyman and the Bostock dissenters is that Title VII requires an employer to provide homosexual employees with a workplace free of sexual harassment, but Title VII nevertheless permits that very same employer to refuse to hire homosexuals, to pay less to homosexual employees, and also to fire homosexual employees because they’re homosexual.  I think that result is inconsistent with Oncale and with well-established precedents regarding religious symbols and garb.