What is sex harassment? Whatever it is, it must be severe or pervasive. In Royal v. CC&R Tres Arboles, No. 12-11022 (5th Cir. 11/21/2013), the Fifth Circuit found the following acts amounted to sex harassment: standing over and behind a woman and smelling her hair several times a day; one man sat in front of the woman with a visible erection and stared at her, saying nothing; smelling women as they emerge from the bathroom. The woman told the male co-workers she did not appreciate the smelling, but the actions continued. The woman reported the conduct to management, who ignored her concerns. The appellate court found that amounted to sexual harassment, but the lower court did not. See my prior post about that case here.

Now, the office of Congressman Blake Farenthold had the following occurrences: staff drinking liquor at work and discussed sex tapes, strip clubs and which anchors on Fox news had breast implants, lobbyists who tested shots of their genitals. A Congressman’s aide wanted to post a photo of a staff member attending an opening of a Twin peaks restaurant/bar ( a Hooter like chain) on Facebook as a promotion of Text business. Two female staffers lodged sex harassment complaints. See Politico report. Rep. Farenthold had an outside agency come investigate these incidents, as he should have. The investigation did not agree these incidents revealed sexual bias. But, the Congressman and the office did undergo sensitivity training.

Yes, in some courts, that conduct would indeed amount to sexual harassment. If there was also some otherwise unexplained personnel decisions that favored male employees. In other courts, it might not be severe or pervasive enough.

And, of course, before these two women complained about the sex talk at work, another female staffer, Lauren Greene, filed a lawsuit against Congressman Farenthold, which he settled for $84,000. Apparently, that training on sexual harassment came too late to avoid a lawsuit. The Congressman says he did not sexually harass Lauren Greene. But, people do not pay $84,000 to settle a claim that has no evidence.

And, look what happened in the Sanders v. Christus Santa Rosa case. In that case, the Western District of Texas found the incidents of alleged sex harassment was severe or pervasive. It rejected the employer’s argument that those incidents were just flirting or sexual bantering. It denied the employer’s motion for summary judgment. Yet, at trial the jury found for the employer. See my post about that case here.

Sometimes, what constitutes sex harassment is in the eye of the beholder. But, we can all agree there is no good reason for discussing sex tapes and genitals at work. And, is there any reason why work related outings need to occur at Hooter’s or Twin Peaks?