By: Alyson Brown, Clouse Brown PLLC

The Texas Supreme Court has rejected a same-sex sexual harassment claim, concluding no sexual intent or gender motivation prompted allegedly offensive statements and unwanted touching.

In its 6-2 decision in Alamo Heights Independent School District v. Clark, the Court held that a female high school coach failed to show that a female colleague’s comments about breasts and sexual activity were motivated by sexual desire or attraction. Although Clark presented more than 100 allegedly sexual comments, the Court refused to find that the conduct — although admittedly vulgar and harassing — was motivated by Clark’s gender.

Similarly, the Court found that alleged instances of unwanted sexual touching were isolated or non-sexual in nature. Although Clark identified some harassment that could be viewed as sexual in nature, particularly comments about her breasts and buttocks, most of her complaints were about bullying and vindictiveness from another female coach who showed no evidence of being a lesbian. For that reason, the Court found the conduct was not motivated by
“sexual attraction or desire.”

In so ruling, the Court accepted the employer’s “equal opportunity bully” defense, noting that the conduct was either (a) nonsexual in nature; or (b) equally spread between male and female targets. The Court further held that there was no evidence of retaliatory intent or adverse employment actions arising from Clark’s filing of an EEOC Charge. The majority concluded that the motivation for harassment, rather than the mere occurrence, is the relevant inquiry.

The Court concluded, “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 a sharp 40-page dissent, two justices noted there would be little debate about the conduct in question if the case had involved a man and a woman instead of two women. Spending six pages listing the sexually suggestive and aggressive comments directed at the plaintiff — but attributing them to a fictional male harasser — the dissent stated, “If Clark’s harasser had been a male — the hypothetical ‘Andy’ described above — this evidence would undoubtedly permit a reasonable juror to conclude that Clark suffered that type of harassment because she is a woman.”

As Hollywood, sports leagues, public companies, and politicians pledge to take tougher stances on sexual harassment and bullying, other courts and the EEOC are adopting more expansive views of Title VII’s prohibitions on sex discrimination. In February, the Second Circuit Court of Appeals followed the Seventh Circuit in holding that a worker’s gender is necessarily a factor in discrimination claims based on sexual orientation. Yet in December 2017, the U.S. Supreme Court declined to hear a Georgia case that posed the same question with a different result.

Although Clark arguably raises the burden for employees to establish a claim for same-sex sexual harassment, the decision departs from the EEOC’s position regarding same-sex discrimination and recent federal cases. Accordingly, Employers should proactively enact workplace policies prohibiting all forms of workplace harassment and discrimination, enforce such policies vigorously, and promptly investigate all claims of discrimination, harassment, and retaliation, no matter the underlying bases for the alleged discrimination.

For assistance with compliance with state and federal discrimination laws, contact Clouse Brown PLLC. Our attorneys are available to assist executives who experience workplace discrimination or harassment. We also advise senior executives who are accused of misconduct or being investigated by their employer. In addition, we help employers comply employment laws and investigate employee complaints.

 

Alyson Brown

About Alyson Brown

Alyson Brown represents employers and executives in all facets of the employment relationship. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Ms. Brown has tried cases in state and federal courts throughout Texas and in other states. She represents clients in a broad range of industries, including health care, banking, energy, high-tech, retail, manufacturing, hospitality, and nonprofit organizations. She can be reached at abrown@clousebrown.com.

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