Oncale v. Sundowner Offshore Servics

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.


The San Antonio Fourth Court of Appeals recognized same sex harassment in certain limited situations.  See my prior post discussing the decision in Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015) here. The seminal case for same sex harassment is the U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In the Oncale case, the court made it clear that there case was really about gender stereotyping, not harassment based on sexual orientation.

The Texas Supreme Court has accepted an appeal regarding the Clark case. We will see if it threads the needle of harassment based on sex stereotypes, instead of harassment based on sexual orientation. The Clark case is based on a plea to jurisdiction. So, we assume the Texas Supreme Court will focus on the essential elements of such a case.

I written before about the complicated decisions regarding whether Title VII prohibits discrimination based on sexual orientation. Ever since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), courts have been grappling with same sex harassment. Does Title VII prohibit discrimination based on sex or not? See my post here and here. The challenge for all judges is that Congress has considered amending Title VII to add protections based on sexual orientation, but ultimately has chosen not to do so. So, the court in Oncale tried to walk a fine line, determining that Title VII did prohibit harassment based on gender stereotypes, but not based on sexual orientation. So, as in Oncale, male on male harassment does violate Title VII so long as they harasser is not motivated by sexual interest.

But, the Seventh Circuit in Chicago appears to be prepared to upend that interpretation of Title VII. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir.), many members of the en banc panel expressed misgivings about the current state of the law. Even the more conservative members of the panel shared concerns with precedent. See Slate post here about that en banc hearing. Title VII states plainly that it prohibits discrimination based on sex. If discrimination is based on sexual orientation, how is that not discrimination based on sex? Judges, left of center or right of center are inherently conservative. They much prefer to interpret the written law as it is written. It is increasingly difficult to ignore the wording of Title VII. It does, after all, prohibit discrimination based on sex.

The EEOC has already issued opinions supporting the view that Title VII prohibits discrimination based on sexual orientation. Courts are generally not far behind the EEOC. Even the well respected Judge Posner pointed out that statutory interpretation is not frozen in time. The Civil Rights Act of 1964, what we know as Title VII, was after all, passed in 1964. That was some time ago. Things have changed, pointed out Judge Posner. Judge Bauer, 90 years old, joined with Judge Posner to laugh at the outdated notion that lesbian women are a reaction to ugly men. You know when the judges are joking, the case is really already decided.

As noted at the end of the hearing, the Seventh Circuit is not a particularly liberal circuit. But, its judges tend to be thoughtful judges dedicated to a high standard of judicial scholarship. If they see the law certain way, one can expect them to adhere to their principles.

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.

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.

The law must reflect the everyday reality of all Americans.  If the law is not grounded in reality, it is no longer "the law."  It becomes something oppressive.  Judge Tate, a long-time judge on the Fifth Circuit, used to say that an appellate decision should make sense to a barber in Ville Platte, Louisiana.  He meant that any decision should be "explainable" to an average person.  The recent decision in EEOC v. Boh Brothers Construction Co., L.L.C., No. 11-30770 (5th Cir. 9/27/13), reflects the reality I understand.  But, I am struck by the two dissents.  The decision is en banc, meaning the entire court heard the case.  The en banc decision overturns the previous decision by a smaller panel of judges.  

In EEOC v. Boh Brothers, the EEOC represented Kerry Woods, an iron worker in New Orleans.  His supervisor, Chuck Wolfe, harassed Mr. Woods because, in Mr. Wolfe’s view, Mr. Woods was not masculine enough.  The EEOC accused the employer of creating a hostile work environment.  The jury found in favor of the plaintiff and awarded compensatory and punitive damages.  Mr. Wolfe supervised a crew of five.  He was vulgar and ribbed his men constantly.  Within a year, Mr. Woods became the supervisor’s primary target.  Mr. Wolfe referred to Woods as "pu–y," "princess," "fa-ot," to or three times a day.  About two or three times a week, when Mr. Woods would bend down to pick something up, supervisor Wolfe would approach him from behind and simulate anal sex.  Mr. Woods felt embarrassed and humiliated.  The supervisor would urinate during work and wave to Woods and smile while doing so.  

According to Mr. Wolfe, some of the teasing started when Mr. Woods said he brought wet wipes with him for lunch.  According to the supervisor, the co-workers teased him about that.  Mr. Wolfe said if you bring that to work, then you should not tell anyone.  He said it was feminine to use wet ones. 

The iron worker complained to the foreman who did nothing.  Within a few months, Mr. Woods asked to see a co-workers’ time sheets.  Mr. Wolfe said that was a terminable offense.  He said Mr. Woods did not fit in.  He was "different."  The supervisor said he was "done with" Mr. Woods.  The iron worker was then transferred.  Mr. Woods then complained to the general superintendent.  The superintendent investigated, found the supervisor’s conduct to be unprofessional, but did not rise to the level of sex harassment.  

A few months later, Boh Brothers laid off Mr. Woods.  He filed a complaint with the EEOC alleging sex harassment.  The jury found in his favor.  The employer appealed.  The first panel overturned the jury verdict, saying there was insufficient evidence to support the jury result.  

The plaintiff then appealed to the en banc court, which upheld the jury verdict.  The majority found that there was sufficient evidence to show that the supervisor harassed Mr. Woods because of his sex, because he was not "manly" enough.  The supervisor, said the majority,  was engaging in sex stereotyping.  Supervisor Wolfe specifically said he targeted Mr. Woods’ masculinity.  The majority opinion noted it had to draw all inferences in favor of the plaintiff.  The majority noted that the seminal decision regarding same sex harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), states that the courts cannot impose a "code of civility" on the workplace.  The court must also display some sensitivity to the social context of the alleged harassment.  But, as the majority noted, this analysis is necessarily fact specific.  Social context is a jury issue, not a judge issue.  

There are three dissents to this decision, but two which cause me some concern.  Two dissents reflect a lack of respect for the role of the jury.  And, in my opinion, these two dissents seek to impose on the jury a wrong-headed view of the all-male workplace.  

In Judge Jones’ dissent, she acknowledges the supervisor’s vulgar and crude remarks.  She claims there is no "hard" proof that the supervisor’s conduct was motivated by gender.  Okay, but the jury was persuaded there was just such evidence.  Judge Jones is drawing no inference in favor of the jury verdict.  In the judge’s view, the majority decision imposes a "speech code" on the public.  In her view, these epithets were not related to sex.  The judge persists in according no deference to the jury’s view that the speech did indeed concern sex.  The judge adds that "everyone" knows what sex stereotyping is.  Opinion, at 48.  She argues that in Mr. Woods’ workplace, crude sexual epithets are very common.  Again, the judge is substituting her opinion for that of the jury.  In our legal system, the jury has the responsibility to find or recognize social norms.  In the civil legal system, used in such countries as France and most of Europe, a well-trained judge has the duty to recognize social norms.  But, in our legal system, inherited from England, that duty belongs to a jury of our peers.  

And, on a personal level, I find her contention to be simply wrong.  I served in the U.S. Army and Army Reserve for 28 years, most of that time in the Infantry.  The Infantry is definitely an all-male environment.  I also worked in several civilian all-male workplaces, from warehouses, to road crews to one month digging ditches for a sprinkler company.  "Crude sexual epithets" were not the norm, at all.  In fact, the sort of harassing exhibited by Chuck Wolfe would get him "run off" or fired from any construction crew I was a part of.  The judge is right that things are more crude on a work crew.  But, too much harassing causes tension.  Tension decreases efficiency.  Decreased efficiency on a work crew will not be tolerated.  Judge Jones displays a simplistic, paternalistic view of the all-male work environment.  Worse, she minimizes the evidence presented at trial.  

For one week, I once worked for Sears delivering major appliances.  My driver and my boss was one of those "crude" persons Judge Jones describes.  His name was Robert or Roberto.  It was hard to hear him in the loud truck.  The cab was not air conditioned, so the windows were always down.  Being the college kid I was, I would always respond with "pardon me" when the noise was too loud.  He loved that.  He would guffaw loudly and proclaim, "no pardon needed!"  I knew even then that, if I had made crude sexual epithets toward other workers, Robert would have "run" me off or had me  fired.  He just would not have tolerated unnecessary tension.  Tension decreases efficiency.  And, yes, even blue collar folks have some manners. 

Judge Smith’s dissent is similar.  He ascribes the majority’s opinion to the realm of "political correctness and social engineering."  Opinion, at 62.  Judge Smith remarkably cites evidence to contradict the jury’s finding.  Judge Smith states that according to certain NFL players, using wet ones is not feminine.  Judge Smith misses the point.  The point is not what is "truly" masculine, but what Chuck Wolfe believed was masculine.  His information is not pertinent.  This information was not part of the trial.  Judge Smith’s dissent strikes me as more political than legal.  The judge concludes that the "hypersensitivity" exhibited by the trial verdict will hasten "cultural decay" and undermines at-will employment.  Again, I do not understand how we get to "cultural decay" in a Title VII lawsuit.  This sounds more like a political argument than a legal one.  See opinion here

But, in the end, neither Judge Jones or Judge Smith can explain how a jury, with no apparent stake in the outcome of the trial, arrived at a completely different conclusions about all-male workplaces and blue collar manners. 

Changing sex is now a protected classification in the eyes of the EEOC.  In Macy v. Eric Holder, a federal employee tried to file a complaint alleging discrimination against her because of her sex – that is, her gender as related to her transgender status.  The federal EEO officer refused to accept her charge.  The employee appealed to the Equal Employment Opportunity Commission.  The EEOC ruled that transgender status was related to her sex and her complaint should be accepted for investigation.  See Work Matters blog post. 

Justice Scalia wrote the decision that extended Title VII to apply to same sex harassment, Oncale v. Sundowner Offshore Servics, Inc.  The drafters of Title VII almost certainly did not intend for that statute to apply to discrimination against gay men and women.  But, as Justice Scalia explained in Oncale, Title VII forbids discrimination based on a person’s gender.  That is the plain language of the statute.  So, if discrimination is based on a person’s gender, Title VII will apply.  In a strained decision, the Oncale decision also held, however, that Title VII does not apply to discrimination against gay persons.  So, the end result of Oncale is if someone is suffering discrimination because s/he is gay, Title VII will not apply.  But, if that same worker is suffering discrimination from a member of the same sex and the discrimination is related to her/her gender, then Title VII may apply.  

Recall that the oil rig worker in Oncale was suffering brutal harassment from co-workers who were clearly engaging in sex based harassment – harassing him in the shower, threatening to rape him, etc. – but none of the workers were gay.  The victim’s harassment was related to his gender, but it was not because he or the perpetrators were gay. 

I expect we will see the same sort of strained reasoning regarding transgender discrimination.