Texas Supreme Court Achieves New Heights in Lows

By Dennis J. Eichelbaum[1], Shareholder

Eichelbaum Wardell Hansen Powell & Mehl, P.C.

In April this year the Texas Supreme Court appears to have sunk to a new low in rebutting not only the Me Too movement, but the common sense barometer. Before them was a sexual harassment case whose facts would shock the senses of most readers; the case involves a female school employee who claimed sexual harassment by her fellow female employees. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755 (Tex. 2018).

Back in 2007, Clark was hired by Alamo Heights ISD as a teacher-coach. Though her first performance review went well, the principal soon developed concerns about both her performance and her relationships with her colleagues – specifically, reports that Clark was not getting along with Coach Ann Monterrubio, another new hire. Over a period of time, Clark alleged a multitude of obnoxious conduct, including the following:

Despite Monterrubio’s lewd behavior, the Texas Supreme Court found a jury could not reasonably conclude the alleged harassment was motivated by Clark’s gender, based primarily on the fact that only a small fraction of the catalogued incidents involved sexual comments directed at Clark. Instead, the court found “the record is replete with evidence from Clark’s complaints and deposition that Monterrubio . . .  engaged in this behavior [because] Monterrubio was jealous of Clark, viewed her as ‘snotty’ and ‘high and mighty’, thought she should quit her job to be a stay-at-home mom, . . . [and] was a bully who enjoyed getting a rise out of her[.]”

Though the court was (allegedly) sympathetic to Clark’s plight, they ruled her unpleasant workplace to be the result of mere bullying and not the result of sexual harassment. In Guzman’s words: “Anti-discrimination laws – in their current incarnation – do not guarantee a pleasant working environment devoid of profanity, off-color jokes, teasing, or even bullying. In this case, the record – viewed as favorably as the legal-sufficiency standard allows – bears no evidence that the inappropriate conduct alleged here was gender motivated.” Apparently, the comments about her breasts sex and showing naked photos and discussing “f—king” were bullying, and certainly not sexual in nature, as was the groping.

The Court, relying on Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) found that the legal standard for same-sex sexual harassment claims under Texas law considers three avenues of proof:

According to the majority, “motivation, informed by context, is the essential inquiry.” This tells us that words are not to be taken at face value, but rather considered in their context. Indeed, “sexually tinged comments may be motivated by other reasons, such as personal animus, jealousy, or the desire to irritate or bully.” Taking Monterrubio’s behavior as a whole, the court found her to have been merely bullying Clark, not sexually harassing her.

The Takeaways

  1. Any same-sex sexual harassment claim must be taken in its larger context

Employers must consider all factors when evaluating a same-sex sexual harassment claim, including the sexual orientation of the harasser, the harasser’s general disposition towards a particular gender, and the harasser’s overall pattern of behavior towards both the victim and other colleagues.

  1. There are multiple ways to prove same-sex sexual harassment

A complainant can prove sexual harassment through evidence of sexual desire on the part of the harasser, general hostility on the part of the harasser towards a particular gender, or conduct disproportionately aimed at one gender.

  1. There is a much higher burden on victims who bring suit under state law

The court takes the aforementioned avenues of proof from a narrow reading of Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), in which the U.S. Supreme Court ruled Title VII prohibits sexual harassment. This is at odds with a broader reading done by federal courts and makes it more likely that victims will bring suit under federal law, rather than state law. Since federal law is more sympathetic to victims, employers should be aware of the more expansive Title VII standards under federal law and assess potential claims under the broader federal standard.

  1. “Locker room talk” is alive (and apparently protected) under state law in Texas.

While school districts have the absolute right to terminate a harassing employee for such conduct, and should, it does not mean the victim will be successful in suing a school district. This case was decided on a plea to the jurisdiction. There were additional facts in this case that led the plaintiff to be released by the district, and some of the facts as alleged by the plaintiff may or may not have been proven had they gone to trial. Nonetheless, it is shocking that the Texas Supreme Court did not recognize these allegations as having set forth even a prima facie case of sexual harassment. Clearly the definition of sexual harassment, that being unwelcome sexual behavior that is severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive, is different if the harasser and victim are the same sex. Respectfully, such a holding flies in the face of a reasonable reader.

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[1] The author thanks April Philley for her contributions to this article.