Well, the San Antonio court of appeals recognized same sex harassment in Alamo Heights ISD v. Clark and now the Texas Supreme Court has overruled that decision. This has long been a difficult area of law for courts. In the federal court system, the Supreme Court reached a compromise of sorts. It recognized that harassment can be based on gender stereotypes, even if the harassers are not homosexual. See the decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The Fourth Court of Appeals in Alamo Heights ISD v. Clark reached a similar result. The Fourth Court found there could be harassment under the state version of Title VII based on gender stereotypes that did not involve apparent homosexual conduct or desire.
I previously wrote about the Fourth Court’s decision here. As I noted then, the harassment by Coach Monterrubio included non-stop comments about Coach Clark’s buttocks and breasts. Coach Monterrubio discussed sexual intercourse frequently with Coach Clark and discussed her breasts almost daily. A second coach often joined in. The appeal concerns a plea to the jurisdiction. So, the issue is not whether Coach Clark can win her case, but whether she can simply advance a claim based on gender stereotyping. The Texas Supreme Court gets the last word and they say no, she cannot advance such a claim.
During the oral argument, Justice Guzman was troubled by the lack of obvious homosexual intent by Coach Monterrubio. Justice Guzman claims the jokes and bullying were not based on Coach Clark’s gender. The judge pointed out that Monterrubio’s remarks also suggested Coach Clark should be a stay-at-home mom where she could be “smug, wealthy and snotty.” But, it is disingenuous to argue that comments like these could not be linked to the plaintiff’s gender: “Wow, Coach, I think your boobs are going to pop out of your shirt!” Telling her that her thong underwear and the dimples on her buttocks were visible. And, upon receiving a candle from Coach Clark, Coach Monterrubio said she would make love next to her candle and think about Coach Clark. To claim these sorts of comments are not linked to her gender is a big stretch. This claim concerns a plea to the jurisdiction. The issue is not who wins at trial, but whether the plaintiff advance the claim.
The Texas Supreme Court rightly noted that courts which follow Oncale are divided regarding whether homosexual motive by the harasser is required. But, the Texas Supreme Court found it did not matter whether Coach Monterrubio was motivated by homosexual desire or not. The majority decision finds a paragraph in Oncale to provide two different methods of proof. Although, I read the same paragraph and do not see any sort of proscriptive injunction to lower courts. It is simply the Oncale court providing two possible examples of how a plaintiff could show same sex harassment under Title VII. They are examples, not rules.
The court is then troubled by the lack of any allegation on Coach Clark’s EEOC charge or in her lawsuit that Coach Monterrubio was motivated by homosexual desire. But, really, that was the point of Oncale, that a man could harass another man even though there was no homosexual desire on the part of either man. The Court claims that Oncale says a claim of homosexuality must be “credible.” But, the Oncale court was simply providing one example of how a person could allege same sex harassment and still be protected by Title VII. Indeed, in Oncale, there was no evidence or claim that the harassing men were homosexual. There was no evidence that the male victim was homosexual. Justice Guzman has found a requirement in Oncale that simply is not present.
Yet, there is ample evidence that the female harasser in Alamo Heights ISD v. Clark was focused on the victim’s gender, which is indeed a requirement of Oncale. Justice Guzman has completely mis-interpreted the decision on Oncale. The majority decision also fails to interpret the evidence in the light most favorable to the non-movant. It explicitly looks at the evidence in ways detrimental to her case. It looks for comments that do not suggest sexual motivation. In the end, this is yet another result-oriented decision from the Texas Supreme Court.
The majority decision is quite long, some 66 pages. Any decision that requires those many pages to make a point is stretching credulity. The majority decision devotes some 15 of those 66 pages to rebutting the dissent. See the majority decision here.
The minority decision makes a good point. If a male coach had said those same things to Coach Clark, there would be no doubt he was sexually harassing the young coach. But, because the harasser was female, the employer gets a pass. The dissent also noted that the majority decision fails to construe the facts in favor of the non-movant. It pointed to an incident in which Coach Monterrubio grabbed Clark’s buttocks during a photo shoot. That sort of incident does tend to show possible lesbian behavior. Yet, the majority decision dismissed it as “horseplay.” Justice Guzman drew conclusions when she should have simply allowed this created a factual issue. See the dissent here.