Is Staring at a Coworker / Former Lover During Work Meetings Sexual Harassment? Texas Court says “No”

rosesJust 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 offensiveone 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 is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108 or fill out the form below.

 

 

 

Lunch Invitations Are Not Sexual Harassment – Says the Texas Supreme Court

lunchLast week, the Texas Supreme Court reversed a $1 million award to a former San Antonio Water System (SAWS) employee, who claimed that she was terminated because she confronted a male vice president about his repeated lunch invitations to two female employees outside his department. The Supreme Court in San Antonio Water System v. Nicholas, held that “no reasonable person could have believed” that the lunch invitations constituted sexual harassment in this case.

Under the Texas Commission on Human Rights Act (TCHRA), an employer may not retaliate against an employee who opposes a discriminatory action (such as sexual harassment), makes or files a charge, files a complaint, or testifies, assists, or participates in an investigation, proceeding, or hearing. Tex. Lab. Code §§ 21.051, 055(1).  However, the employee’s actions must be based on a good-faith reasonable belief that discrimination is taking place, even if a later investigation shows that no such discrimination actually occurred.

The question in this case was whether Nicholas’s belief that sexual harassment had occurred was a reasonable good-faith belief? If so, then firing her for complaining about the VP’s conduct would have been retaliation and would have violated the TCHRA.  However, if her belief that the lunch invitations constituted sexual harassment was not reasonable, then she was not entitled to damages under the statute.

The Supreme Court concluded that Nicholas’s belief that the lunch invitations equaled sexual harassment was not reasonable:

“Flores’s lunch invitations may have been unwelcome, but no reasonable person could believe they constituted sexual harassment actionable under the law. We do not mean to say that lunch invitations can never be a component of a viable sexual-harassment claim, but under the facts of this case the lunch invitations were not so severe or pervasive as to alter the conditions of employment or create an abusive work environment.”

The Court then compared the facts of this case to other instances where offensive but isolated conduct by employees was found to be insufficient to form the basis of good-faith reasonable belief that the law had been violated, and noted that this case “paled in comparison” to the following claims of sexual harassment that the Court had previously rejected:

  • a single incident of male employee reading aloud sexual innuendo contained in a psychological evaluation, at which he and another male employee chuckled, could not reasonably been seen as violating the law;
  • a single instance of male employee entering women’s restroom and “gawking” at undressed women could not create objectively reasonable belief that claimants suffered illegal sexual harassment;
  • a female employee could not reasonably believe she had been sexually harassed when male supervisor commented on her underwear being visible under her uniform;

The Court concluded that because Nicholas could not have reasonably believed that Flores’s lunch invitations constituted an unlawful employment practice, her retaliation claim against SWAS failed.

TAKEAWAY FOR EMPLOYERS: Sexual harassment claims, even those that are baseless, can cause significant business disruption, lower morale, and cost a lot in attorney’s fees. Having the following at your workplace can significantly reduce such claims: (1) sexual harassment training; (2) having a process that allows employees to report their complaints; (3) documenting the complaints and subsequent investigation properly; and (4) reacting to those complaints that have merit.

The above case went all the way to the Texas Supreme Court because the three key persons involved in the investigation – the CEO, the general counsel, and Nicholas – had different memories about what the female employees told them about the lunch invitations.  It is possible, that Nicholas’s claim could have been shut down much earlier if the investigation notes contained a uniform and consistent account of what occurred.

TAKEAWAY FOR EMPLOYEES:  To make out a statutory sexual-harassment claim, an employee must prove more than that she found the harassment offensive.  Sexual harassment is actionable only if it is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.  Offhand comments and isolated incidents, unless extremely serious, typically will not amount to discriminatory changes in the “terms, conditions, or privileges of employment.”

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to EEOC charges and investigations, and litigates employment disputes. For more information, Ms. Dolghih for a confidential consultation at Leiza.Dolghih@lewisbrisbois.com or (214) 722-7108.