In last year’s landmark Bostock decision, the U.S. Supreme Court held that discrimination due to sexual orientation or gender identity is prohibited under Title VII. In its earlier Oncale decision, the Court concluded that same-sex sexual harassment claims were covered under Title VII. A new decision from the Fifth Circuit Court of Appeals helps explain the impact of Bostock on gender-based harassment claims under Title VII.

In Newbury v. City of Windcrest, TX, the plaintiff was a female police trainee. She claimed that she was harassed and eventually forced to resign by her female supervisor. The plaintiff alleged that this hostility was motivated by the fact that she was not gay, and therefore that she had been discriminated on the basis of her sexual orientation as prohibited under Bostock. The district court dismissed the case on summary judgment, and the plaintiff appealed to the Fifth Circuit.

The Fifth Circuit affirmed the dismissal. In its decision, the court noted that Bostock did not change the legal standard for proving same-sex sexual harassment. The plaintiff still must demonstrate under Oncale that she was treated differently due to sexual desire, or due to hostility toward the presence of her gender in the workplace. In this case, the court noted testimony that the female supervisor was rude to officers of both genders, and that the plaintiff never offered evidence that she was treated differently due to her sex.

This decision demonstrates that federal courts will not interpret Bostock to provide plaintiffs alleging workplace harassment with a free pass to a jury trial based on allegation that their sexual orientation differs from that of a co-worker or supervisor. The plaintiff must still demonstrate that sex, including sexual orientation or gender identity, was a motivating reason for the alleged harassing conduct.