Texas Supreme Court holds standards in same-sex discrimination cases are distinctly different than opposite-sex standards
Alamo Heights Independent School District v Catherine Clark, 16-0244, — S.W.3rd – (Tex. April 6, 2018).
This is a workplace same-sex discrimination, harassment and retaliation case where the Texas Supreme Court held that while the actions complained of were vulgar, they were not motivated by an illegal purpose. Warning, this is a 66-page majority opinion. So, the summary is a bit long.
The Alamo Heights Independent School District (“AHISD”) employed Catherine Clark as a coach. Clark asserts her fellow female coach, Monterrubio, began sexually harassing her by making continuous comments about her body. Clark filed a charge of discrimination with the EEOC. The principal placed Clark on an intervention plan. Monterrubio was transferred to another campus. However, Clark was ultimately terminated and filed suit. AHISD filed a plea to the jurisdiction which was denied. At the intermediate court of appeals, the panel held the high frequency of the non-severe comments nevertheless created a hostile environment centered around Clark’s gender and affirmed. Summary found here. The Texas Supreme Court granted review.
The facts take up a large section of the opinion. However, the key factual points of note are that Monterrubio would often comment about Clark’s boobs and appearance. Moterrubio would also comment about her own sex life to male and female employees, including sexual escapades involving three men in three nights. She would send vulgar cartoons intended to be humorous. The Court noted the multitude of other events were not sexual in nature, but were merely rude or crass. Monterrubio’s behavior was the same whether it was addressed to a male, female, parent, teach or student. AHISD investigated Clark’s complaints each time, either at the campus level or district level. At one point the district did transfer Monterrubio to a different campus. However, Clark continued to have personality conflicts with other employees and her performance was continuously documented as being low. AHISD eventually terminated Clark.
The Court went through a very detailed analysis of same-sex harassment standards under Title VII and the Texas Commission on Human Rights Act (“TCHRA”). Citing the seminal case of Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held Title VII’s protection against workplace discrimination “because of . . . sex” applies to harassment between members of the same gender. The Court recognized same-sex discrimination cases are more complicated because of their nature. In addition to sexual desire, the Court noted a same-sex case can be established by showing general hostility to a particular gender in the workplace or direct comparative evidence of treatment of both sexes. However, all of the methods require conduct to have more than offensive sexual connotations, but to be discriminatory because of the gender.
The Court stressed and restressed that the context of the workplace and the individual acts is critical to an analysis of the sexual desire method. Clark never alleged, and no evidence established, Monterrubio was homosexual and none of the contexts demonstrate any sexual desire towards Clark, so the sexual desire method was disposed of. Next the Court noted there was no evidence of a general hostility towards women. None of the record “even hints” that Monterrubio’s behavior, characterized as mistreatment of men and women alike, evinces hostility towards women in the workplace. Finally, the Court noted there was no evidence of a comparative discrimination. The Court held comments about gender-specific anatomy, alone, does not create an inference of harassment. Clark made over 100 wide ranging complaints about Monterrubio and only a handful were about gender-specific anatomy. Focusing “only on gender-specific anatomy and ignoring motivation is legally unsound and is a misreading of Oncale.” Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases. Motivation, informed by context, is the essential inquiry. Under the retaliation claim, the Court held that permitting a retaliation case, predicated on a but-for analysis, to proceed to trial when the prima facie case has been rebutted and no fact issue on causation exists “defies logic.” To qualify as a protected activity, complaining of harassment is not enough. The complainer must show some indication gender is the motive. Therefore, none of Clark’s internal complaints constitute protected activity. However, the EEOC complaint does qualify as protected. The TCHRA does not protect employees from all forms of retaliation, only those actions which are materially adverse. The only actions taken against Clark which qualified was placing her on an intervention plan and the eventual termination. However, Clark failed to establish causal link between either of these actions and her EEOC complaint. Eight months elapsed between the EEO charge and recommendation for termination. Such is too long in this situation. Further, nothing shows the stated reasons for Clark’s termination were false. It is undisputed Clark failed to follow lesson plans, failed to maintain student grades properly and had low performance reviews. An employer is not forbidden from addressing performance issues involving employees who have engaged in protected activity, including following through on known pre-existing issues. As the jurisdictional analysis for the plea requires a full analysis of the factual issues, and Clark failed to carry her burden, the plea should have been granted.
The Majority’s opinion spends the last several pages responding to the dissent’s analysis (found here), calling the legal theories flawed and the listing of facts a distortion. The Court held the purported harassment is “repugnant and unacceptable in a civilized society. But we cannot step beyond the words of the statute…” Plaintiff’s claims were therefore dismissed.
If you would like to read this opinion click here. JUSTICE GUZMAN delivered the opinion of the Court, joined by CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE JOHNSON, JUSTICE DEVINE, and JUSTICE BROWN. JUSTICE BOYD filed a dissenting opinion, in which JUSTICE LEHRMANN joined. JUSTICE BLACK did not participate.