Supreme Court’s Seminal Bostock Decision “In No Way Altered the Pre-existing Standard for Sexual Harassment.”

So asserted the U.S. Court of Appeals for the Fifth Circuit in rejecting a female police officer’s claim of same-sex harassment, following the Supreme Court’s decision in Bostock v. Clayton County, in which it ruled that Title VII’s prohibition on “sex discrimination” in employment encompasses sexual orientation and gender identity.

In Newbury v. City of Windcrest, the police officer complained of sexual harassment by a fellow female officer. Following an investigation into the complaint by an outside law firm, the city concluded that the other officer had been rude, but no harassment had occurred. She then resigned and sued.

In same-sex harassment cases, the Fifth Circuit conducts a two-step inquiry by first determining whether the conduct is sex discrimination, and then whether the conduct meets the standard for a hostile work environment. The Fifth Circuit, relying on Supreme Court precedent, has stated that a plaintiff can meet the first step by showing one of the following: (1) that the harasser is homosexual and motivated by sexual desire; (2) specific evidence that the harasser was motivated by general hostility to a particular gender in the workplace; (3) comparative evidence about how the harasser treated both sexes in the workplace; or (4) evidence of sex-stereotyping.

In the present case, the Fifth Circuit found that the police officer offered no evidence of sex discrimination, as the complained-of conduct was merely rude in nature and not directed at all female co-workers. The police officer argued that, under Bostock, a plaintiff’s sex need not be the sole – or even main – reason for the conduct. However, as the Fifth Circuit noted, in expanding “sex” under Title VII to encompass sexual orientation and gender identity, the Supreme Court reasoned that an employer’s taking adverse action against employees because of those characteristics was inextricably tied to sex, even if sex was not the sole motivating factor for the action. But the Supreme Court’s expansion did not alter the legal standard for sexual harassment, and certainly was not intended to shield all sexual harassment claims from summary judgment.