There was no dispute that some of the conduct that Clark alleged she had been subjected to, such as comments about the appearance and size of Clark's breasts, would not have been directed at a man. In the majority's view, while the sex-specific nature of challenged conduct can be relevant in determining whether the alleged harasser was motivated by the claimant sex's, that conduct must be examined in context. In particular, the majority noted that "[r]egardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases." By contrast, the dissent contended that harassment that "focuses on a woman's unique sexual features, which could 'not have occurred if she were not a woman,' constitutes harassment 'because of' her gender even if 'the motivation behind plaintiff's mistreatment was gender neutral.'"
To my mind, neither the majority nor the dissent has it exactly right. The dissent is correct that sex-specific conduct can be inherently sex-discriminatory even if the harasser is not motivated by gender bias. For example, offensive conduct that targets a woman's sexual anatomy facially discriminates against her for being a woman. But the majority is correct in distinguishing between same-sex and opposite-sex contexts. It might be reasonable to infer that a man who makes derogatory comments about a woman's breasts harbors anti-female animus but not reasonable to infer that a woman who makes the same comments harbors anti-female animus. Yes, it's possible for a woman to discriminate against another woman, but that does not change the fact that a man is more likely to discriminate against a woman than a woman is to discriminate against a woman. Thus, the dissent is mistaken in assuming that if some conduct is facially sex-based, then it necessarily follows that facially neutral conduct was also sex-based.
Here, I think the dissent is correct that sex-specific conduct can be used to establish a hostile work environment based on sex. But the majority is correct that, in a same-sex harassment case, it is generally not reasonable to assume that facially neutral conduct was motivated by sex bias merely because the alleged harasser also directed sex-specific conduct at the victim. As a result, the court probably should have examined the sex-specific conduct standing alone to determine whether a reasonable jury could have concluded that it created a hostile work environment based on sex.
The majority and the dissent agreed that evidence of sexual desire can show that harassment was sex-based, but they disagreed whether Clark had presented sufficient evidence of sexual desire. On this issue, I think both the majority and the dissent start with a mistaken premise. As I've discussed in the past, Title VII does not prohibit sexual conduct per se but conduct directed at an individual for being a man or for being a woman. What this means is that evidence of sexual desire generally will be sufficient to show that conduct was sex-based, but not always. The dissent cites Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), but the Supreme Court made it clear in that case that evidence of sexual desire only establishes that conduct was sex-based to the extent it is reasonable to infer that the conduct would not have occurred but for the victim's sex:
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.Thus, if a female employee directs conduct at a female coworker based on sexual attraction, it would not be reasonable to infer that the conduct was directed at the coworker for being a woman if the alleged harasser is also sexually attracted to men. And in this case, the record reflected that the alleged harasser had a boyfriend.
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.