But suppose that John, though bisexual, is only sexually attracted to African Americans, and he propositioned Jane, in part, because she is African American. Meet the racist bisexual harasser. His conduct does not discriminate based on sex, but it does discriminate based on race.
This example may seem contrived, but it is intended to illustrate an important point. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, sex, religion, or national origin. Sexual conduct is not necessarily based on the victim's sex, meaning whether the victim is male or female. Nor is it necessarily not based on another protected characteristic, such as race.
If this surprises you, you're in good company because it has confused many a court. In Doe v. City of Belleville, the Seventh Circuit suggested that harassment that is sexual in nature is covered by Title VII regardless of the harasser's sexual orientation or motivations. Less than a year later in 1998, the Supreme Court rejected this view. In Oncale v. Sundowner Offshore Services, Inc., the Supreme Court made it absolutely clear in a unanimous decision that conduct is not automatically based on a victim's sex merely because the conduct is of a sexual nature:
We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.As the Court noted, if a male supervisor directs sexual proposals at a female subordinate, it is ordinarily reasonable to assume that the supervisor would not have made sexual proposals to another man. That assumption rests on the fact that most men are heterosexual and do not direct sexual proposals at other men. The sexual nature of the conduct is thus merely evidence of the harasser's heterosexuality and, by extension, his motivation in targeting a female employee because of her sex. Similarly, if a male supervisor directs sexual proposals at another male employee, then it may be reasonable to assume that the supervisor is gay and therefore would not direct sexual proposals at a woman. By contrast, if a harasser is bisexual, then sexual proposals are not based on the victim's sex since a bisexual harasser might direct sexual proposals at either a man or a woman.
Unfortunately, even following Oncale, many courts remain confused. Some have latched on to Oncale's discussion of sexual desire, mistakenly concluding that conduct motivated by sexual desire is per se covered by Title VII. For instance, in Dick v. Phone Directories Co., the Tenth Circuit held that conduct that is motivated by sexual desire targets an individual because of his or her particular sex, regardless of the sexual orientation of the harasser:
[W]e hold that under Oncale, one way . . . a plaintiff in a same-sex sexual harassment suit may demonstrate that the harassing conduct was motivated by sexual desire, and therefore occurred because of her sex, is to establish both that the harassing conduct constitutes an explicit or implicit proposal for sexual activity and that her harasser is homosexual.
. . . We emphasize that Oncale's first evidentiary route turns on whether the harasser acted out of sexual desire. A plaintiff who makes this showing establishes that the harassment took place because of her sex, regardless whether she has also demonstrated that her harasser is homosexual.Similarly, in Pedroza v. Cintas Corp. No. 2, the Eighth Circuit disagreed that evidence of the female harasser's heterosexuality showed that she did not target the female plaintiff because of sex. Such evidence, in the court's view, merely showed that the alleged harasser was not strictly homosexual, thus leaving a jury free to conclude that the victim was targeted based on homosexual desire.
And recently, in Smuk v. Specialty Foods Group, No. 13-cv-8282 (N.D. Ill. July 13, 2016), Judge John Blakely rejected the defendant's attempt to show that the plaintiff was not treated adversely for being male by pointing to evidence that the alleged harasser was bisexual. Although the court was bound by the Seventh Circuit's decision in Holman, which rejected a claim involving a bisexual harasser, Judge Blakely merely paid lip service to that decision, concluding that harassment based on sexual interest is covered by Title VII unless the harasser actually targeted individuals of both sexes in the same workplace. As with the Tenth Circuit in Dick and the Eighth Circuit in Pedroza, Judge Blakely erred in focusing solely on whether the conduct was based on sexual interest and not on whether the sexual interest was based on the victim's particular sex.
As noted in Oncale, the dispositive issue is whether members of one sex are treated worse than members of the other sex. The issue is not merely whether conduct was motivated by sexual desire, but whether evidence of sexual desire shows that the victim was treated worse because of his or her own sex. Although it may be reasonable in most cases to assume that sexual desire corresponds to sex discrimination, that is not so when there is evidence that the harasser is bisexual.
To some, it seems to defy logic that sexual harassment would be exempted in the narrow circumstances when it is taken by a bisexual harasser. In Ventura v. Johnson Controls, Inc., for example, Judge Paul Papak stated: "I am unaware of any support for the theory that Congress may have intended in enacting Section 2000e to render harassment by a heterosexual co-worker actionable but to exempt harassment by a bisexual co-worker from liability." Similarly, in an amicus brief in Holman v. Indiana, the EEOC warned of the "policy consequences of endorsing the view that a sexual harassment claim can be negated by a harasser's decision to target a second person of the opposite gender from his first victim."
The same argument, turned on its head, was made in the early days when courts were first beginning to recognize coverage of sexual harassment, to try to establish that no sexual harassment can be considered to be sex-based. Dissenting from the denial for a rehearing by the full D.C. Circuit in Vinson v. Taylor, Judges Robert Bork, Antonin Scalia, and Ken Starr wrote:
[T]his court holds that only the differentiating libido runs afoul of Title VII, and bisexual harassment, however blatant and however offensive and disturbing, is legally permissible. Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks. That bizarre result suggests that Congress was not thinking of individual harassment at all but of discrimination in conditions of employment because of gender.Thus, in 1985, three very conservative judges pointed to the bisexual harasser gap to argue that no sexual harassment is covered, and in 1999, the EEOC pointed to the bisexual harasser gap to argue that all sexual harassment is covered. What's good for the goose is good for the gander.
Although it may seem peculiar that bad conduct should be illegal when directed narrowly at a particular group but legal when directed indiscriminately at all workers, that anomaly merely reflects the nature of EEO law. Title VII and the other laws prohibiting workplace discrimination target conduct that treats some workers worse than others for certain specified reasons. Excluding harassment by a bisexual harasser is no different from excluding other forms of unfair conduct that are not based on a protected characteristic.
On the other hand, if a bisexual harasser is racist and only propositions workers of a particular race, then a plaintiff could bring a race discrimination claim. Some judges might raise an eyebrow, but someone has to be the first to make the argument.
About the photo: I originally titled this post "The Bisexual Harasser and Buridan's Ass." I decided to drop the reference to Buridan's ass, but I like the photo (cute donkey), so I kept it.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.