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Proving Same-Sex Harassment in the Workplace Can be a Challenge


Many people believe that unlawful sexual harassment in the workplace only involves a male employee harassing a female employee. True - the majority of sexual harassment cases involve men harassing women. But, there are other forms of sexual harassment that are also illegal. Lewd sexual comments, sexual propositioning, and even unwanted physical touching of a sexual nature are common examples of sexually harassing behavior. But, women can also be guilty of sexual harassment and same-sex harassment can be a viable cause of action. A very recent case in the Texas Supreme Court demonstrates how difficult it can be to prove same-sex harassment. Even though the case involves Texas state law, the same principles apply.

Alamo Heights Independent School District V. Clark

Clark, a female coach employed at a school within the Alamo Heights Independent School District, complained to her employer that another female coach, Monterrubio, with whom she worked, was harassing her for a significant amount of time. Her complaints included comments made about female body parts and included specific references to Clark’s buttocks and breasts. She also complained that the other female coach often used vulgar language including sexual connotations. Some of those comments were directed to her. Clark was offended by the fact that Monterrubio frequently discussed her sex life in explicit detail at work. However, many of the other incidents about which Clark complained were not sexual in nature, although they included unwanted physical touching. The majority of the complaints though involved cursing, making rude comments and being aggressive, such as criticizing Clark’s parenting and teaching skills.

Actions not based on Plaintiff’s sex

One of the problems in this case, according to the court, is that Monterrubio’s actions and attitude were not reserved for Clark. In other words, Monterrubio was rude and engaged in inappropriate behavior towards parents and students as well. The sexual jokes and comments were made to both male and female coaches and all of this conduct occurred on nearly a daily basis. For this reason, there was no clear showing that Clark was being treated the way she was because of sex. More importantly, the plaintiff did not actually allege that she was bullied, harassed and offended by Monterrubio because she was female or because of her sex. Instead, much of Clark’s allegations support the conclusion that Monterrubio’s behavior was not related to her gender. It was just how the coach treated everyone.

Proving same-sex harassment

Although both opposite-sex and same-sex harassment are based on the same federal law, what is required to prove these two claims is often very different. Particularly, proving same-sex harassment is more challenging. Why? Because the natural inference from sex-related comments and actions when two people are of the same gender is not the same when people of the opposite gender are involved. To put it another way, when one woman makes a sexually explicit comment toward another woman, the first impression is not necessarily that it was made because the other person was a woman because there is more often a lack of sexual desire. However, sexual desire as a motivation is not the only method for proving harassment based on gender. If you can show there was a general hostility toward one gender in the workplace, you may be able to prove your case. Also, you can show direct comparator evidence - evidence showing that others similar to you were treated the same way.

Does the harasser have to be homosexual?

In this case, both parties disagree about whether the plaintiff must prove that the alleged harasser was homosexual in order to establish sexual harassment. The courts are not in complete agreement either. On the one hand, there is federal case law that says “credible evidence” of homosexuality can establish the claim, but does that mean such evidence is mandatory? That is one reason these cases can be so challenging. If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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