I often wonder why more defendants do not try the “we discriminate against everyone” defense. In theory, if a supervisor discriminated against all genders and all races, then he could not be guilty of treating one nationality or one gender better than another. In  Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015), the Fourth Court of Appeals here in San Antonio addressed a defense much like that. Catherine Clark was a coach at Alamo Heights Junior High School. From her first day, she was harassed on the basis of her gender by a co-worker, Coach Anne Monterrubio, and later also by her supervisor, Michelle Boyer. As the Fourth Court explained, there are various ways in which a person can be prove harassment on the basis of gender by same sex persons. A litigant is not limited to the method used in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the seminal case regarding same sex harassment. In Ms. Clark’s case, Coach Monterrubio constantly made comments to Coach Clark about her breasts and her buttocks. When Coach Clark complained to the Athletic Coordinator, Coach Boyer, the supervisor joined in on the harassment herself.

Coach Clark later complained to the school principal. But, the Principal failed to report the harassment up the chain of command. The harassment persisted for two years, at which point Coach Clark was fired. That is, her contract was not renewed.

The employer tried to argue that Coach Monterrubio also harassed all her co-workers, including men. The court was not impressed, finding that by far, most of the reported comments were female oriented and pointed at Coach Clark. But, really, anytime an employer has to argue the “equal opportunity discriminator” defense, it is starting at a deficit. Do you really want to argue that the harasser is so bad that she harasses everyone?

Since the employer had submitted a plea to the jurisdiction, the court did not have to address any issues regarding pretext. The only issue was whether Coach Clark could make out a prima facie case. The Court found the comments, the touching and the bumping were frequent enough that it reached the level of severe or pervasive. It helped the plaintiff’s case that the school violated a great many of its internal procedures, apparently never viewing the same sex harassment as harassment that had to be reported. This is an important lesson for employers: same sex harassment must follow the same protocols as male on female harassment. See decision here.