Harassment is reprehensible, but Title VII was passed to outlaw discriminatory behavior and not simply behavior of which we strongly disapprove. The artificiality of the approach we have taken appears from the decisions in this circuit. It is "discrimination" if a man makes unwanted sexual overtures to a woman, a woman to a man, a man to another man, or a woman to another woman. But this court has twice stated that Title VII does not prohibit sexual harassment by a "bisexual superior [because] the insistence upon sexual favors would . . . apply to male and female employees alike." Thus, this 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. If it is proper to classify harassment as discrimination for Title VII purposes, that decision at least demands adjustments in subsidiary doctrines.This excerpt is from a 1985 dissent by three conservative judicial superstars: Antonin Scalia, Robert Bork, and Kenneth Starr. Since then, the Supreme Court has recognized that sexual harassment is covered under federal EEO law, but its reasoning rests on the presumption that a sexual harasser targets individuals of a particular sex. In Oncale v. Sundowner Offshore Services, the Court explained that it is easy to infer that male-female sexual harassment is sex-based because it "is reasonable to assume those proposals would not have been made to someone of the same sex." Thus, while largely swept under the rug, the issue of the bisexual harasser is not dead.
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.