San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 The state appeals court in Austin looks at what is sexual harassment and what is not.  Sex harassment refers to the situation in which a woman (or a man) is harassed without explicit requirement of a sexual relationship.  Sex harassment simply refers to harassment short of an explicit  relationship.  in Twigland Fashions, Ltd. v. Miller, the state Third Court of Appeals looked at a 49 day period in which a regional manager focused his attentions on a female store manager.  He hugged her twice - two "full body hugs." He told he loved her.  He told her she had to kiss him whenever she made a mistake.  Mike Mslanka discusses the case in his recent post.  The supervisor came up behind the female employee and wrapped his arms around her and pressed his body against hers.  She was fired after she spent two weeks avoiding the regional manager. 

But, the employee also testified that she could perform her work just fine when the regional manager was gone.  He only came to the store once or twice a month.  To constitute sexual harassment under Title VII or Texas Labor Code Art. 21, the harassment must rise to the level such that it affects the terms and conditions of her employment.  The court said the harassment must be so extreme and abusive that it deprives the victim of an equal opportunity in the workplace.  The court found that since the employee could perform her tasks well in the absence of the male supervisor, then her work conditions were not affected.  

Mike Maslanka describes this court decision in positive terms.  Of course, I represent employees mostly and find the decision troubling.  If the woman must fear every visit from this supervisor, are not her working conditions affected?  If she must work so hard to avoid him when he is present in the store, are not her working conditions affected?  Mike does not mention that the victim, a store manager who had been promoted by the regional manager, believed that the supervisor was suggesting that she cooperate with him if she wanted continued promotions.  See court decision. 

As Mike points out, this standard should be the same standard for racial victims, too.  He is right.  It should be.  But, we know that the standard used in this Miller case is not the same standard.  In a race or national origin case, it would be enough that the supervisor made disparaging comments about a man's race or national origin.  It would be enough if the supervisor suggested a deal with an employee, cooperate with him outside the office and promotions would continue.  But, because this case is sexual harassment, these facts are not enough.  The Miller court is applying a higher standard.  If this were not a sex harassment case, most courts would find the working conditions have been adversely affected in this work environment.  

The jury apparently agreed with me.  In this case, the appeals court took away the jury verdict.  As I have mentioned before, many juries understand the realities of the workplace better than many judges. 

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 The Fourth Circuit Court of Appeals (federal court) covers the Carolinas, Virginia, Maryland and West Virginia.  The Fourth Circuit and the Fifth Circuit (Texas, Louisiana and Mississiippi) are the two most conservative courts of appeals in the country.  So, it is news when the Fourtth Circuit overturns summary judgment in favor of the employer.  In this sex harassment case, the Fourth Ciorcuit found in favor of the plaintiff in Merritt v. Old Dominion Freight.  

The Court correctly noted that evidence of the falsity of the employer's explanation alone is sufficient to show discriminatory animus.  That is, evidence that the story was false suffices to show the employer was motivated by discrimination.  The case should go to the jury.  The jury should review that evidence of the employer's story and determine whether they believe that evidence shows discrimination.  

Key evidence included a PAT, a physical ability test, which the employer required Ms. Merritt to take before allowing her to return to work.  Evidence showed that few if any males had been required to take the PAT when they sought to return to work.  The employer could not produce any written policy showing when it even was supposed to require the test.  I think what caught the court's attention was the employer's argument regarding this policy evolved over time during the litigation and the appeal.  "It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape."  Slip opinion, at p. 15.  That is a polite way of saying that the employer did not pull this argument out until the appeal.  

It is never a good thing when a judge notes that a key claim or argument only took final shape on appeal.  That is judge-talk for this defense appears to be less than sincere.  And, the court is right that such lack of sincerity is for the jury to assess, not judges. 

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 The 11th Circuit Court of Appeals rendered a good decision on a sex harassment case.  Reeves v. CH Robinson Worldwide.    The latest version is an en banc decision overruling the result by an earlier 11th Circuit three judge panel.   An en banc decision means all the judges of the Court participated in this decision, not just the original three judges who rendered the first decision.  

The decision addresses the issue regarding the use of certain derogatory terms for women.  Is the use of the term "bitch" inherently discriminatory toward women?  The Court found that use of that term could indicate prejudice toward women depending on the context in which it was used.  Note that not all circuits agree with this finding.   The 7th Circuit, for example, has found that use of the term "bitch" is not necessarily targeted toward gender.   But, the Reeves court found that use of the terms "bitch" or "slut" would inherently be more demeaning toward women.  I think most people would agree, lawyers or non-lawyers.

The Reeves court further found that in this case, even if the men do sometimes use terms such as "bitch" and "whore" toward men, using such terms toward men does not make them less offensive toward women.  "It is undeniable that the terms "bitch" and "whore" have gender specific meanings.  Calling a man "bitch" belittles him specifically because it belittles women," said the Court.  Duh.  Its only amazing that such an issue must be appealed this far up before a judge can apply some common sense.  Yes, indeed, the background and life experiences of a judge do make a critical difference in many cases. 

The 11th Circuit also found that slurs directed at women in general could serve as evidence of prejudice toward a specific woman, thus joining the 2d, 4th, and 7th Circuits.  So, the en banc decision overturns the prior three judge panel decision in this same case.  It is, for once a good decision in favor of the employee. 

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 Aaron Ramirez, a plaintiff employment lawyer in Dallas, writes about the "woman-hating" Dallas Fire Department.  The "D" magazine published an article with that just that title.  He wrote about the sex harassment issues again at this post.  I hope the Dallas experience is unique.  I represented a female victim of sex harassment at the San Antonio Fire Department several years ago and was pleasantly surprised to find that the SAFD actually was pretty anxious to hire her.  They were not guilty of any sex discrimination, at all.  The actual harasser was another employer.  But, of course, having served in the Army Reserve and National Guard for some 25 years, I have some first-hand experience with how some women are treated in male dominated work places.  

It will end at some point, but it may take a few lawsuits before real change comes.....

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 Cathy McBroom is headed back to Galveston with a promotion.  See Texas Lawyer story.  Ms. McBroom was one of the ladies complaining about Sam Kent's sexual  harassment.  Judge Kent later accepted a plea bargain and is doing 33 months in a federal penitentiary.  Ms. McBroom had been Judge Kent's Case Manager.  She was transferred to the Houston Division in 2007 when she made her complaints.  That is, she was transferred to Houston to work for other federal judges.  She will now go back to Galveston as deputy clerk in charge of the Galveston Division where she will serve as Case Manager for another federal judge. 

If only all sexual harassment complaints could turn out so well......

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 Judge Sam Kent was denied his request to be certified as having a disability which affected his ability to perform his duties.  The 5th Circuit Court of Appeals denied his request.  Judge Kent was and still is a United States District Judge.  He heard many discrimination cases in his 15 years plus on the federal bench in Galveston.  He denied relief to a great many plaintiffs in discrimination cases, including sex harassment cases.

It turns out he was harassing his own female employees.  He was indicted last year for harassment and obstruction of justice.  He will now very likely be impeached.  If the 5th Circuit had found him to be disabled, then he would have continued to receive his federal judge's pension. 

Its one thing to harass and then deny other female victims the right to sue for harassment.  But, to then claim disability when he has denied disability protections to so many other persons with disabilities.  He claims diabetes and alcoholism.  Alcoholism seems the stronger argument.  But, under the Americans with Disabilities Act (prior to being amended in 2009), alcoholism did not qualify as a disability unless the victim was undergoing treatment.  

Its easy to look at his claim for disability with skepticism.  I hope it was sincere.  If it was, he probably better understands the position of many of my clients when they have been turned down for protection they deserved. 

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 One question that frequently comes up is what constitutes "sex harassment."  That has been a very important question in the proceedings against a federal judge.  Judge Sam Kent was sent to jail for 33 months for abusing his position and harassing female subordinates.  Certainly, his actions, groping females, was clearly sex harassment.  But, generally, any unwanted attention based on gender constitutes sex harassment.  

But, look at that statement closely.  The actions must be known to the victim.  If not know, there is no way to know whether it is unwanted.  The stereotypical grafitti on the wall of the men's room only becomes an issues when it becomes known to the victim.  And, the actions must be based on gender.  If the grafitti concerns both men and women, then it is probably not based on gender.  

Earlier, Judge Kent tried to claim the touching was consensual.  There are many ways to show consent or non-consent.  It helps if a victim complains about the problem to someone else at about the time of the unwanted attention.  But, the best way to show lack of consent is simply for the victim to file a written complaint about the actions.  Many victims do not complain early on, simply out of a desire to "fit in" or try to get along.  That is part of what makes sex harassment cases problematical.  If employment cases were easy, then the PI lawyers who advertise on TV would be doing them....

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 I am frequently asked about sex discrimination.  Until I retired last year, I was a member of Reserve/National Guard units for many years.  Sex harassment was an occasional topic of concern.  It is true that unwanted touching is clear sex harassment.  But, what about invitations to dinner?  What about persistent invitations to dinner?  If the person says no, how clear must she be?  How often does she need to say no?  What if the harassment comes from co-workers?  This is a very complicated subject, wrought with deep emotions on all sides. 

There are generally two types of sex harassment: hostile work environment (most often caused by co-workers) and traditional sex discrimination (in which a supervisor treats an employee differently due to the employee's gender).  Hostile work environment refers to occasions when co-workers make a person's work environment extremely difficult - and the co-workers(s) are motivated by the victim's gender.  This is when you hear stories of graphic pictures hanging on the wall or sex based jokes.  As I used to tell my Guard/Reserve audiences, the only safe joke now is a good Aggie joke.  There is no place for gender based jokes in today's workplace.  

Contrary to what some people, even some trained HR personnel, say, there is no easy formula for what constitutes hostile work environment.  It all starts with the alleged victim.  What does he/she say?  What does he/she find objectionable?  The HR/management team should complete a thorough investigation.  The employer is not required to be perfect or understand everything, but it is required to make a thorough investigation and take effective action if necessary.   One of the many challenging aspects of harassment, sex based or otherwise, is the employer must listen closely to the alleged victim.  Sometimes, the harassment consists of relatively harmless acts, such as refusing to invite the victim to critical meetings or even lunch, refusal to greet the alleged victim in the hallway, or worse.  So, it is important that the employer do something it may not often do: listen closely.  

But, in the end, it is about retaining trained, qualified, motivated employees.  So, the better the employer responds to one incident or one complaint, hopefully, the better *all* employees will perform.  In the end, a well-motivated workforce is a profitable workforce.  

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