Plaintiffs in these cases must show actual discrimination based on gender. Justice Scalia's opinion thus giveth and taketh away. The world of Title VII plaintiffs now includes men and women experiencing same-sex discrimination. That is the law of the land, but it also is now the law of the land that harassment must be severe. Those who complain about dirty jokes, a few off-color pictures and perhaps occasional propositions have a much harder row to hoe.
Severity is the plaintiff's second new element of proof.
Scalia cautioned that lower courts shouldn't look at horseplay, flirtation and the like as sexual harassment. Finally, said the Supreme Court, lower-court judges must consider allegedly wrongful sex discrimination in context. Oncale won, and his case will go to trial. Potential plaintiffs in sex discrimination cases probably lost a little, because the Supreme Court plainly wants lower courts to screen out cases where harassment and abuse are not sufficiently severe. For the rest of us, those of us who are not victims planning to sue, we can watch judges trying to make sense of Scalia's guidance.