Just in time for the Valentine’s Day, a recent case involving a workplace romance turning sour provides a good refresher on what constitutes sexual harassment in the eyes of the law (in Texas) and demonstrates how an employer should handle sexual harassment complaints properly.
In Vanderhurst v. Statoil, a senior employee had a six-month extra-marital affair with a co-worker whom he was supposed to mentor. He claimed that after he ended the affair, the woman threatened to physically harm him and his wife and to accuse him of sexual misconduct, so he reported her to the HR. The HR department: (1) told him and the female to act professionally and stay away from each other; and (2) moved the woman to the other side of the floor about 200 feet away and placed her on a different team. From that point on, the two employees never worked with each other again, and the woman never threatened, touched, or spoke to the male employee.
Nevertheless, the male employee perceived that he was continued to be harassed because (1) the female employee walked past his work station multiple times a day and (2) stared at him during group work meetings. He complained to the HR again, but shortly thereafter left the company for a competitor. He then sued his former employer under the Texas Commission on Human Rights Act for retaliation, hostile work environment and constructive discharge.
Hostile Work Environment Due to Sexual Harassment – What is the Standard?
Under Texas law, a hostile work environment claim entails ongoing harassment, based on the plaintiff’s protected characteristic (e.g., in this case, gender), so sufficiently severe or pervasive that it has altered the conditions of employment and created an abusive working environment. Thus, the elements of a prima facie case of hostile work environment are:
(1) the employee belongs to a protected group
(2) the employee was subjected to unwelcome harassment
(3) the harassment complained of was based on the protected characteristic
(4) the harassment complained of affected a term, condition, or privilege of employment; and
(5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.
To satisfy the fourth element of a hostile environment claim, a plaintiff must show that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to create a hostile or abusive working environment. The plaintiff’s “work environment must be both objectively and subjectively offensive . . ..” That is, it must be “one that a reasonable person would find hostile or abusive AND one that the victim perceived to be so.”
In Vanderhurst, the Court of Appeals clarified that when courts consider hostile-work-environment claims, they look at “the totality of the circumstances,” including:
(1) the frequency of the discriminatory conduct;
(2) its severity;
(3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; and
(4) whether it unreasonably interfered with the employee’s work performance.
What did the Court of Appeals Rule in this Case?
“Considering the totality of the circumstances, we hold that there is no evidence that plaintiff’s work environment was objectively offensive—one that a reasonable person would find hostile or abusive.” Basically, it agreed with the trial court that “the conduct described by Vanderhurst may have been annoying, but it [did] not constitute an objectively offensive work environment sufficient to support a hostile-work-environment claim.”
BOTTOM LINE: There is a difference between workplace behavior that a reasonable person would find annoying or awkward and the behavior that crosses into sexual harassment. Sometimes, the line is rather clear – as it was in this case – and a lot of times, it is not. For companies to avoid lawsuits related to sexual harassment it is important to: (1) provide quality sexual harassment training; (2) make sure employees know how and where to report any complaints; (3) investigate all complaints of sexual harassment; (4) take an appropriate action when necessary and not ignore the situation.
Leiza Dolghih represents companies in business and employment litigation. She also frequently advises companies on all aspects of employment law from hiring to firing to internal and government investigations. She can be reached at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108 or via the form below.