Dive Brief:

• When the U.S. Supreme Court interpreted workplace anti-discrimination protections as applying to sexual orientation and gender identity in its Bostock v. Clayton County ruling, it did not erase the "preexisting legal standard for sexual-harassment," the 5th U.S. Circuit Court of Appeals recently opined. As a result, a police officer's argument that Bostock protected her sex harassment claim from summary judgment failed, the court ruled (Newbury v. City of Windcrest, Texas, No. 20-50067 (5th Cir., March 22, 2021)).
• The plaintiff and another female police officer "butted heads" during her first year, according to the court's opinion. They had a "heated dispute" about an incident report, and the other officer filmed the plaintiff via cellphone during a separate confrontation. The plaintiff further alleged that her co-worker once gave her a "dirty look" and sometimes ignored her or declined to shake her hand. The plaintiff quit her job and sued, claiming sex discrimination, retaliation, constructive discharge and more under Title VII of the Civil Rights Act of 1964 and Texas law.
• A district court ruled for the employer on all of the plaintiff's claims, and the appeals court agreed. The 5th Circuit noted that it requires a two-step analysis for same-sex sex harassment cases. The court concluded that plaintiff's claim failed at the first step because she hadn't established that the other woman's conduct was sex discrimination. It pointed out that the plaintiff had presented only two pieces of evidence in support of her argument, and that a male officer reported the co-worker was rude to him as well. In addition, other employees told investigators that the female officer was cordial to some female colleagues.

Dive Insight:

The plaintiff relied on a landmark U.S. Supreme Court case decided last summer, Bostock v. Clayton County, in arguing that her claims should have survived summary judgment. In Bostock, the nation's top court ruled that Title VII's prohibition against sex discrimination includes workplace bias against employees based on their sexual orientation and gender identity.

In Newbury, the plaintiff argued that under Bostock, "a plaintiff's sex need not be the sole — or even main — reason for the action taken against him or her." The appeals court disagreed with the plaintiff's argument, explaining that while the High Court had arguably expanded the groups of individuals protected by Title VII, it had not altered the preexisting legal standard for sex-based harassment. In fact, the court said, the Supreme Court reaffirmed the existing legal standard and "by no means purported to shield all sexual harassment claims from summary judgment, regardless of the evidence."

With Bostock cementing workplace rights for LGBT workers, employers should update employee handbooks and policies and procedures to comply with the new standard and other anti-discrimination laws, experts recommended. One of the first actions President Joe Biden undertook in office was the issuance of an executive order aimed at preventing and combating discrimination on the basis of sexual orientation or gender identity. Biden noted in the order that it is the policy of his administration to fight such bias and to "fully enforce" Title VII and other laws that forbid such discrimination. He ordered agency heads to review all orders, regulations and guidance for inconsistences with his anti-discrimination policy and to consider as soon as practicable whether to revise, suspend or rescind the rules or agency actions and to put into place new rules that fully forbid sex discrimination.