« Eric Segall on Originalism and the Second Amendment
Michael Ramsey
| Main | Guha Krishnamurthi: The Failure of the Newest Originalism
Michael Ramsey »


Discriminating Between Bostock and Oncale
Andrew Hyman

Co-blogger David Weisberg recently wrote on this blog that the U.S. Supreme Court’s opinion in Bostock v. Clayton County (2020) reached the correct result but should have relied more heavily on the rationale in Oncale v. Sundowner (1998).  I'll get to Oncale in a minute, but first want to say something about Bostock.

Bostock forbade employers from discriminating based on sexual orientation.  I still agree with what Randy Barnett and Josh Blackman wrote about Bostock.  They pointed out that the 1964 statute forbids certain “discriminat[ion] against any individual … because of such individual’s … sex.”  According to Blackman and Barnett, this referred not just to treating people of different genders differently, but doing so with bias or prejudice against one sex or the other.  So, if 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.  It may indicate that the employer is misguided, but the statute is not directed against that general characteristic.  As I wrote following the oral argument, "the discrimination against people in the present case (Bostock) is not against one gender or the other, even via implication or animus or anything else."  However, I probably should have emphasized that point more, and elaborated upon it, as Blackman and Barnett have done.

Getting back to the Oncale case, I agree it was correctly decided, because the lower courts had erred: the appeals court had wrongly affirmed the district court’s holding that, “Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers.”  As the Supreme Court correctly put it, “We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.”  The Court did not say whether Oncale was actually subjected to workplace harassment violating Title VII, but only that he had a valid legal claim to make upon remand to the trial court.

Mr. Weisberg says that “Mr. Oncale was sexually harassed in his workplace because his fellow employees believed he was gay.”  But maybe it was because they believed he was a homosexual man.  Apparently, Oncale was not actually gay.  It’s unclear from the Court’s opinion what the sexual preferences of his 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.  The Supreme Court in Bostock said: “the plaintiff [in Oncale] alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female....”  Assuming that is correct, then Oncale seems different from Bostock, because in Bostock neither gender was discriminated against. It may have been grotesque treatment in Bostock, but not all grotesque treatment is gender discrimination.