Friday, May 12, 2017

Texas Supreme Court Takes Up Important Issues in Same-Sex Harassment Case

Currently pending before the Texas Supreme Court is a case involving three important issues for Texas employers, both public and private.  First, to invoke the TCHRA’s waiver of governmental immunity, must a plaintiff establish but-for causation found in the third step of the McDonnell Douglas burden-shifting framework? Second, what kind of evidence can establish that same-sex harassment was not just about gender, but because of gender?  And third, must a supervisor actually exercise hiring and firing authority under the United States Supreme Court’s standard in Vance v. Ball State Univ. for the purpose of establishing vicarious liability?
 
In Alamo Heights Ind. Sch. Dist. v. Clark, No. 16-0244, Clark, a female physical education teacher and coach, claimed she was sexually harassed by her female supervisor and a co-worker, and fired in retaliation for her complaints.  In the trial court below, the school district filed a plea to the jurisdiction, which the trial court denied, and then appealed the denial to the Fourth Court of Appeals, which upheld the trial court’s ruling.  The Texas Supreme Court recently agreed to hear the case.
 
Both sides weave vastly different stories in their briefing.  The school district claims that the trial court and the Fourth Court of Appeals erred, and should have: (1) required Clark to prove but-for causation to survive the plea to the jurisdiction; (2) determined that Clark was unable to prove her sex harassment claim because the harassment was about gender, but not based on gender; and (3) found that Clark’s “supervisor” was not a “supervisor” in accordance with the Vance standard.
 
In turn, Clark: (1) disputes that she is required to prove but-for causation to survive the plea to the jurisdiction, and instead claims she must only establish a prima facie case; (2) claims that the evidence, which includes lewd comments and touching, establishes that the harassment was based on sex; and (3) contends that one of the harassers was a de facto supervisor under Vance, and was also a “supervisor” for other reasons. 
 
If the school district is right about the jurisdictional issue, plaintiffs seeking a waiver of sovereign immunity under the TCHRA will face a high burden early in the litigation when challenged by a plea to the jurisdiction.  If Clark is right about her same-sex harassment claim, then the Court could arguably, expressly or implicitly, expand the evidentiary routes for a plaintiff to establish harassment because of gender.  And finally, the Court’s decision about the scope of authority required to establish “supervisor” status, if reached, could either expand or contract the pool of individuals who can subject an employer to vicarious liability.