The courts have been struggling with the meaning of “sex” in Title VII for a couple of decades. Title VII prohibits discrimination based on “sex.” Does that include discrimination based on sexual orientation? In Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), the court tried to
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
The Texas Supreme Court heard oral arguments in the Clark v. Alamo Heights Independent School District case. The San Antonio Court of Appeals recognized same sex harassment in that case. The school district has now appealed the matter to the Texas Supreme Court. The lawyer for the district appears to be trying to un-do that
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
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.
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
The Fifth Circuit has granted an en banc hearing request concerning a same sex discrimination case. In the lower court, a jury found in favor of the employee regarding a same sex discrimination case. On appeal, the Fifth Circuit vacated the jury result and found in favor of the employer. Now, on additional appeal, the
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.
To show same sex harassment, one must show: 1) the alleged harasser made explicit or implicit proposals of sexual activity and that the sexual harasser was homosexual, 2) the harasser was motivated by general hostility toward members of the same sex, or 3) direct, comparative evidence showing different treatment for members of the same sex