The Fourth Court of Appeals recently addressed a growing issue, at what point does same sex harassment constitute sexual harassment based on gender? Since the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), we know there is such a thing as sexual harassment by persons of the same gender. In Oncale, several male co-workers harassed a male worker on an oil rig. The content of the harassment was clearly based on sex. But, none of the participants were gay. The employer argued rightly that previous precedent found that Title VII did not apply to same sex harassment based on gay or homosexual conduct. The Supreme Court in Oncale, however, found that this harassment was not based on homosexual conduct. This harassment was based on gender stereotypes. The court recognized then that same sex harassment was cognizable under Title VII if it was based on gender stereotypes.

But, what about the Texas equivalent of Title VII? Does the Texas Commission on Human Rights Act, Labor Code Sec. 21, include same sex harassment, not based on homosexual harassment? Yes, says the Fourth Court in Alamo Heights ISD v. Clark, No. 14-00746 (Tex.App. San Antonio 10/21/2015). In Clark, a new female coach at a middle school was harassed essentially from day one by the two senior, female coaches. The two senior female coaches discussed Coach Clark’s buttocks, her breasts almost daily and even blocked her exit from a room on occasion. The Fourth Court had no trouble finding this behavior over two years to be quite pervasive.

The employer tried to argue that the most offending coach directed her sexual banter and harassment at both men and women. But, the court disregarded that allegation, finding that most of the senior female coach’s harassment related to Coach Clark as a woman. As the court noted, this decision concerns a plea to the jurisdiction. So, the question concerns whether there is sufficient factual issue to justify a jury trial. There was, concluded the court, sufficient factual question regarding the nature of the senior coach’s harassment.

The school unfortunately did not take action in regard to Coach Clark’s EEOC charge. Indeed, they placed her on a performance improvement plan just a few days after the school received the charge. And, noted the court, Coach Clark had not received a negative evaluation until after she had filed her charge. The school also failed to follow district policies regarding alleged sexual harassment. The school did not report the allegations to the district. Remarkably, the school principal even warned the young coach that there would be “consequences” for her charge. The school faulted Ms. Clark for not complaining about the sexual harassment within ten days of the acts. But, there was no written policy that imposed a ten day time period. The court found that the district failed to follow its own procedures in several ways. So, the higher court affirmed the lower court’s denial of the plea to jurisdiction.

See decision here.