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Tex. S.Ct.: Harassment by member of same sex not ‘same-sex harassment’ under state law

By Lisa Milam-Perez, J.D.

Conceding that a female gym teacher endured “repugnant” harassment at the hands of female coworkers in a public school athletic department, much of which was sexual in nature and included dozens of comments about female body parts, the Texas Supreme Court held the harassment was not because of her gender, and so she failed to state a sexual harassment claim under the Texas Commission on Human Rights Act (TCHRA). Nor could she make out a retaliation claim. A divided state high court reversed the court of appeals’ judgment (which had affirmed the court below) and dismissed the employee’s TCHRA claims. On one key point of law, however, the justices agreed: In the context of a plea to the jurisdiction, the jurisdictional inquiry in a TCHRA circumstantial evidence case is not limited to the prima-facie element of the burden-shifting framework (Alamo Heights Independent School District v. Clark, April 6, 2018, Guzman, E.).

Different rules apply. The decision is one for the hornbooks: a combined 100 pages of eminently quotable majority opinion and dissent, each applying different weight to a fairly egregious collection of facts—many salacious in nature—and applying different reasoning to those facts. Notable here, as to same-sex harassment law, was the majority’s objection to the dissent’s approach of replacing the female harasser with a hypothetical male, and to its undue focus on “the raunchy details” rather than the record evidence as a whole.

Different inferences drawn. “Focusing on the few relatively salacious incidents, the dissent overlooks the fundamental foundation of this case—the harasser and victim are both the same gender. That dynamic creates different inferences than if the relevant parties are opposite sex, which is why the Supreme Court in Oncale went to great pains to lay out ways a same-sex plaintiff can prove sexual harassment,” the majority wrote. The dissent relied on “the artifice” of presenting the harasser as male and on cases of opposite-sex harassment, “and acting like the same rules automatically apply. They don’t. If they did, it would not have taken a Supreme Court case to resolve a circuit split over the threshold issue of whether same-sex harassment was even actionable under Title VII.”

Equal opportunity harasser? “The dissent’s theatrical device of switching the gender of the harasser for illustrative purposes is an analytically inapt oversimplification that bypasses an inquiry into the reasonableness of the inferences that may be drawn,” the majority wrote. “Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.” Moreover, the majority accused the dissent of ignoring facts that reveal the primary villain in the case to be an equal-opportunity harasser. “We view all competent evidence—not just a handful of the flashiest examples,” it rebutted, concluding that ‘the only reasonable inference” is that the harasser was motivated by reasons other than gender.

Harassment. The middle-school gym teacher was bullied mercilessly, if the facts are to be believed, by a female coworker. The teacher documented an exhaustive list of more than four dozen incidents in a letter to the principal once she had reached her breaking point. With later complaints, she surpassed the 100 mark. These included seemingly constant comments about her breasts and buttocks, and the use of vulgar language with sexual connotations, occasionally directed specifically at her. The coworker discussed her own sex life at length, telling her fellow coaches about “three men in three nights,” sharing photos of her boyfriend’s genitals, and sending out lewd emails, both to male and female coaches. She and another coworker bought “indecent ornaments” for themselves and the employee for the holiday gift exchange and, at the Christmas party, “grabb[ed] their private areas of their bodies for photographs next to the Christmas tree.” They also grabbed the plaintiff’s behind during a group photo (although this fact was not presented to the principal in the plaintiff’s complaint letter).

Bullying instead? “The multitude of other incidents” that she described in the letter, though, were “not remotely sexual in nature,” according to the majority. These offenses included rude comments to the plaintiff’s daughter, swearing at her, and criticizing her teaching. Importantly, the plaintiff said the coworker regularly mistreated everyone, including the other coaches—male and female—and also behaved inappropriately toward parents and students. Moreover, although the plaintiff was the primary target, she never asserted that this was because she is a woman. In fact, she attributed her conduct to other reasons: The harasser had called her “a snob” and “high and mighty,” she didn’t like that the plaintiff brought her kids to school on occasion, and she just seemed to delight in “getting a rise” out of the plaintiff.

Complaints. After receiving the letter, the principal investigated (but did not report the complaint to district officials). The principal concluded there was no evidence to support the allegations or “perceptions,” and the teacher’s complaint was “swept under the rug.” The abuse worsened the following school year, and both teacher and harasser were put on “employee growth” plans. (The teacher was admonished for bringing her children to school and other issues.) Meanwhile, she filed an EEOC charge, naming the original harasser along with the girl’s athletic department coordinator, also female, who she claimed had since joined in the abuse. For example, the pair discussed fellatio while eating eggrolls and one shouted across the room to the other: “I wonder if [the plaintiff] swallows.”

The teacher submitted three more letters to the principal in two months’ time, detailing more than 40 additional complaints about her harassers, as well as other coaches, and the principal herself. However, with the exception of an allegation that her primary nemesis had “once stared at her bottom,” none of the allegations related to sex, but rather were allegedly in retaliation for having raised a sexual harassment complaint. Again, the principal investigated and again concluded there was no evidence of harassment or retaliation. The situation continued to deteriorate, and the main harasser was transferred, but this still didn’t end the matter. The complaints continued. Additional concerns arose about the teacher’s own performance, however (from coworkers, too) and she was placed on administrative leave and eventually terminated.

Lawsuit. The teacher filed suit alleging sexual harassment and retaliation claims under the TCHRA. The school district filed a plea to the jurisdiction, arguing the TCHRA’s governmental-immunity waiver did not apply because the employee had no evidence of a violation of the law. It argued there was no evidence the alleged harassment was gender-based, and no causal link between her protected activity and a materially adverse employment action. The trial court denied the plea, and the court of appeals affirmed, holding the employee had established a prima facie case of sexual harassment and retaliation sufficient to invoke the TCHRA’s immunity waiver and establish subject-matter jurisdiction. The appeals court had concluded the bulk of the harasser’s comments related to the fact that the employee was female and focused on her female anatomy. The Texas Supreme Court reversed, however, finding no evidence to raise an inference that gender motivated the harassment and no actionable retaliation.

Same-sex harassment. Following the Oncale framework, the state high court first considered at length whether there was credible evidence that the harasser was motivated by sexual desire (the first evidentiary route available under this U.S. Supreme Court precedent), and concluded there was none. She never alleged, either in her complaints to the principal or the EEOC, that either of her harassers are lesbians. She cited idle gossip but this was not credible evidence, nor was her subjective belief that her abuser looked at her in a “creepy” manner and was “hitting on her.” She also never alleged either harasser had sexually propositioned her.

“Sexual horseplay.” In fact, her primary harasser discussed numerous sexual encounters with various men and shared nude photos of men. Moreover, although the plaintiff complained of instances of “unwanted sexual touching” and claimed these encounters reflected sexual desire, the court found this was unsupported. In sexual harassment law parlance, the majority attributed an isolated instance of unwelcome contact to “sexual horseplay.”

Anatomy not destiny here. As for her contention that the harasser’s incessant remarks about her body were evidence that the harasser liked her body and was sexually attracted to her, the majority reasoned: “It takes more than a woman noticing and commenting on a feature of another woman’s body—even in a complimentary way—to demonstrate sexual attraction.” (And at any rate, the majority added, the harasser’s comments weren’t complimentary.).

The appeals court (the dissent here, too) had stepped out of the Oncale framework and reasoned that it was enough that the harasser made a significant number of comments about her female anatomy to satisfy the “because of sex” requirement. However, the majority stated that comments about gender-specific anatomy and characteristics do not alone raise an inference that harassment is because of gender. The record evidence didn’t support the premise that the main focus of the harassing comments related to the fact that the plaintiff was female. In addition to having misstated the record, “focusing only on gender-specific anatomy and ignoring motivation is legally unsound and relies on a misreading of Oncale,” the majority wrote. Moreover, “that a comment relates to a woman’s body says nothing about the speaker’s motive,” which is an essential inquiry, the majority said, pointing out that the TCHRA is not a strict liability statute. “Why matters.”

Others not treated more favorably. The teacher also failed to establish same-sex harassment using direct comparative evidence that the harasser treated members of the other sex more favorably. Her complaints were replete with allegations that the harasser “talked trash” about everyone, including men, and used profanity and discussed sex around the entire department. The crux of her complaint was that the harasser engaged in inappropriate conduct toward male and female coworkers alike. The harasser may have directed the worst of her abuse toward the teacher, but there was no evidence she did so because of her gender.

Thus, although the teacher “experienced misery at work that no employee should endure,” no reasonable juror could find it was because of sex. Therefore, she did not assert an actionable violation, and immunity had not been waived as to her TCHRA sexual harassment claim.

Burden-shifting and retaliation. The retaliation claim presented a question of first impression for the high court: whether an employee must produce evidence to support her retaliation claim when no presumption of unlawful retaliation exists under the McDonnell Douglas burden-shifting framework. When applying a burden-shifting approach to retaliation claims, the precise evidentiary elements of the prima facie case differ from discrimination cases, the court explained, and the but-for causation standard is significantly more difficult to prove than prima facie causation.

Here, the parties disputed which of the three McDonnell Douglas steps are implicated in the jurisdictional analysis and whether the evidence at hand raised a fact issue sufficient to invoke the TCHRA’s merits-based immunity waiver. The court of appeals had limited the jurisdictional analysis to the prima-facie-case element, meaning evidence regarding the other two stages was not considered in determining whether the plaintiff raised a fact issue regarding the immunity waiver. This was error: “All elements of a TCHRA circumstantial-evidence claim are perforce, jurisdictional,” the supreme court pronounced.

When an employee’s prima facie case is rebutted, “there is no presumption and thus no evidence of illegal intent,” the court pointed out. “Permitting a McDonnell Douglas case to proceed to trial when the prima facie case has been rebutted and the plaintiff has not raised a fact issue on causation defies logic. More importantly, allowing a trial to proceed without evidence to sustain a claim is repugnant to the TCHRA’s immunity waiver and contrary to the legitimate objectives of governmental immunity.”

No showing of retaliation. Having resolved that point of law, the supreme court turned to the facts and concluded the teacher could not support a reprisal claim. The teacher’s written and verbal complaints to the principal did not put the principal on notice that she was alleging gender-based harassment. Again, while a handful of the complained-of incidents had a sexual component, the overwhelming majority did not. They included claims of mistreatment directed toward both males and females, and never hinted that she was being targeted because of her sex, or out of sexual desire toward her.

Gender not the motivator. “Magic words” are not required to invoke the TCHRA’s anti-retaliation protection, the court acknowledged, but there had to be some indication that gender was the motivation, and that simply wasn’t present here. Some of the more salacious sexual facts weren’t even included in the complaint letter or the EEOC charge; thus, while the dissent made much of these particular allegations, they couldn’t be factored into the analysis of whether the principal knew at the time that the complaint was of harassment based on sex.

The only protected activity, then, was the teacher’s EEOC charge and, while the high court concluded that being placed on a “growth plan’ and termination were both adverse employment actions, the remaining allegations of reprisal, including being pushed, bumped into, and chased down by her assailant, were not, since she was a coworker, not a decision-maker. Although there appeared to be some deviation from the standard disciplinary procedure here, the remaining causation factors weighed in the employer’s favor. The court concluded there was no fact issue to suggest that the teacher would not have been terminated but for her EEOC charge. Thus, immunity had not been waived as to the retaliation claim, either, and the school district’s jurisdictional plea should have been granted.

A “moral wrong” without vindication. Context matters, the majority stressed, emphasizing that it could not consider the facts, “appalling” though they may be, outside their context. Nor could the court stray from the words of the statute, or depart from legal sufficiency standards, to “vindicate a moral wrong.” Thus, while it took pains to stress its disgust with the conduct alleged, the majority ultimately turned to a quote from Justice Scalia: “The text is the law, and it is the text that must be observed.”