Analysis Law and Policy

Can One Woman Sexually Harass Another? The Texas Supreme Court Doesn’t Seem to Think So

Lisa Needham

It's a decision that shows just how easily courts—particularly those dominated by conservatives—are discomfited and confused by same-sex issues.

Last week, the Texas Supreme Court issued an opinion in a sexual harassment case involving same-sex harassment. In that case, Alamo Heights Independent School District v. Clark, the court held that even though a junior high school coach and physical education teacher was subject to repeated instances of crude, sexualized behavior at her workplace, she couldn’t sue the district because her harasser was another woman. It’s a decision that shows just how easily courts—particularly those dominated by conservatives—are discomfited and confused by same-sex issues.

More than 20 years ago, the U.S. Supreme Court addressed the issue of same-sex harassment. It concluded that Title VII of the Civil Rights Act of 1964, which prohibits on-the-job discrimination on the basis of sex, did protect employees against same-sex harassment. Regardless of that decision, the Texas Supreme Court still concluded that Title VII did not protect Catherine Clark, the plaintiff.

When Clark was first hired by Alamo Heights Junior School, her career as a coach got off to a good start with favorable performance reviews. Within a year, however, she experienced trouble with another recently hired coach, Ann Monterrubio. By any metric, Monterrubio’s reported behavior toward Clark was both awful and coarsely sexual in nature. As outlined in court documents, Monterrubio repeatedly commented on the size of Clark’s breasts and made vulgar comments about Clark’s genitalia. Monterrubio also informed Clark that she would think of Clark when she was having sex and speculated about Clark’s sexual habits, Clark reported. Clark even testified that Monterrubio and another employee, Michelle Boyer, groped Clark during a group photo. Clark said Monterrubio exhibited this same sort of behavior toward other employees, both men and women. She also seemed to have other issues with Clark, asserting Clark was “high and mighty” and a snob.

As this behavior wore on, Clark’s job performance degraded. Eventually, in 2009, she was fired. Clark later sued the school district under the Texas Commission on Human Rights Act (TCHRA), a Texas state statute modeled on Title VII. Both the trial court and the Texas Court of Appeals held that Clark had sufficiently shown that she was discriminated against based on her gender, that Monterrubio’s conduct created an abusive working environment, and that the district knew of Monterrubio’s behavior but failed to take any action. The school district appealed, however, and that’s when the Texas Supreme Court ruled that Clark hadn’t sufficiently pleaded her case. That decision ends Clark’s lawsuit and forecloses any relief.

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In part, the Texas Supreme Court felt that Clark hadn’t shown Monterrubio’s behavior was motivated by sexual desire. Perhaps it was the fact that Monterrubio was poorly behaved in a wide variety of contexts that led the Texas Supreme Court to conclude that her behavior towards Clark was not discrimination on the basis of sex. The justices held that there was no evidence Monterrubio’s behavior was motivated by sexual desire and instead found that Monterrubio’s real motivation was jealousy and that she was a bully. The court also noted there was no “credible evidence” that Monterrubio was bisexual or a lesbian, intimating that if Monterrubio were lesbian or bisexual, then the court might have agreed that her harassment of Clark was sexually motivated.

The court’s decision here creates a big problem for those who would plead and pursue a same-sex harassment case. It creates a situation where the plaintiff must somehow divine the “real” motivations of their tormenter. Rather than objectively identifying sexualized behavior—groping, comments about body parts, speculation about sexual acts—as harassment, someone pleading a same-sex case under this Texas standard must somehow also prove that those behaviors are subjectively driven by sexual desire.

The court also displayed a very cramped view of sexuality with its focus on the reports that Monterrubio was profane to both men and women—therefore, it determined, such behavior could not possibly be motivated by gender. This is absurd on its face in that it ignores the fact that there are indeed people who are attracted to both men and women and might engage in harassing sexual behavior with either or both genders. It also creates a spectacular defense for the potential harasser: If they extend their bad behavior to both men and women, they can never be said to be engaging in harassment on the basis of sex.

Similarly, the court focused on the fact that the comments and behavior that Clark alleged were sexually harassing were merely a portion of Monterrubio’s abusive behavior towards Clark. Again, this creates a spectacular defense to a charge of sexual harassment: As long as you engage in a pattern of non-sexualized bad behavior along with sexualized bad behavior, you can’t be a sexual harasser.

It’s almost impossible to contemplate that in the era of #MeToo the Texas Supreme Court would still say that Monterrubio’s groping of Clark was “understandably upsetting [but] could not be reasonably interpreted as a sexually motivated touching.”

The court’s decision also ignored an uncomfortable truth about harassment: It isn’t uncommon for it to be motivated by more than one thing. People can engage in harassing behavior because they sexually desire the person they are harassing while at the same time loathing that person or wanting to exert dominance or control over that person. The latter impulse shouldn’t negate the former.

The decision in this case was not unanimous, and the dissent was blistering. Justice Jeffrey Boyd began his dissent with a thought experiment: Pretend that rather than Ann Monterrubio harassing Clark, imagine Andy Monterrubio doing so. When you imagine a male employee repeatedly commenting on a women’s breasts and genitalia, groping her without consent, and speculating about her sex life, you reach the inexorable conclusion that the behavior is sexual harassment. Put another way, the majority’s opinion presumes that when a man makes repeated sexual comments to a woman, he must be driven, at least in part, by sexual desire—but we assume when a woman does the same to another woman, she must be driven by jealousy or some other animus.

The dissent also highlighted a key point about where this lawsuit was in terms of procedure: At this stage of litigation, Clark was only seeking permission to pursue her claims. Clark wasn’t yet required to marshal every last bit of evidence available to her. She was just required to provide sufficient allegations of sexual harassment to be allowed to proceed to the trial stage. But the majority opinion didn’t even believe she’d met that burden.

Additionally, the dissent zeroed in on something the majority willfully overlooked: that several federal courts have already held that it is harassment on the basis of sex when the complained-of conduct includes comments that focus on sex-specific body parts such as breasts or buttocks. The presumption that a fellow employee is simply a rude bully is illogical when the abusive behavior takes the form of fixating on specific sexual characteristics. There’s a world of difference between an employee who bullies people by telling them they’re stupid or ugly or bad at their job and an employee who repeatedly talks about the intimate parts of someone’s body. As Boyd wrote:

[I]f Monterrubio was jealous of Clark or had animosity towards her, or if she was simply a crude and mean person who enjoyed teasing and insulting others, she could have chosen many ways to harass Clark. But at least some evidence establishes that Monterrubio’s efforts to humiliate Clark were effective because she followed a well-beaten path: she relied on the all-too common tactics that have historically been used to degrade and deter women in the workplace.

It seems a bit odd to say that one of the ways in which same-sex rights advance is when they achieve parity with opposite-sex sexual harassers, but it’s true. At root, what the majority opinion relied on is a belief that a woman can’t really sexually harass another woman. That’s inextricably bound up with retrograde ideas about women’s sexuality, and it’s a concept that must disappear. It’s too bad the Texas Supreme Court couldn’t see that.

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