Texas Supreme Court sharply splits on same-sex harassment case


The 6-2 ruling tossed out a lawsuit by middle school coach who said she was harassed by another female coach.

Dueling opinions include an unusual amount of sniping between members of the state’s highest civil court.

Locked in a bitter disagreement over how to judge claims of same-sex sexual harassment, a sharply divided Texas Supreme Court on Friday dismissed a lawsuit by a female San Antonio middle school coach who complained that another woman created a hostile work environment.

In a 6-2 ruling, the majority said that Catherine Clark’s lawsuit against the Alamo Heights school district could not continue because she did not prove that she had been mistreated because of her gender, as required by state anti-discrimination laws.

According to the majority opinion by Justice Eva Guzman, it is more complicated to prove harassment from somebody of the same sex because similar words and actions can have different connotations and meanings when the source is a man or a woman.

What’s more, Guzman wrote, although Clark alleged some harassment that was sexual in nature, particularly comments about her breasts and buttocks, most of her complaints were about bullying and vindictiveness from another female coach who showed no evidence of being a lesbian and therefore not of being motivated by “sexual attraction or desire.”

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“The record bears no evidence … Clark was subjected to discrimination because she is a woman,” Guzman wrote. “Anti-discrimination laws — in their current incarnation — do not guarantee a pleasant working environment devoid of profanity, off-color jokes, teasing, or even bullying.”

A strongly worded dissent by Justice Jeff Boyd and joined by Justice Debra Lehrmann accused the majority of creating a double standard in harassment cases.

Spending six pages listing the sexually suggestive and aggressive comments directed at Clark, but attributing them to a man named Andy, the dissent argued that jurors would have no trouble finding that Clark was harassed by a man because of her gender.

Boyd said the majority ignored ample evidence that fellow coach Ann Monterrubio had harassed Clark about “gender-specific, intimate body parts” — actions that numerous federal courts have found to be gender-based sexual harassment.

“If Clark’s harasser had been a male — the hypothetical ‘Andy’ described above — this evidence would undoubtedly permit a reasonable juror to conclude that Clark suffered that type of harassment because she is a woman,” Boyd wrote. “But just as undoubtedly … a jury could also reasonably infer from this evidence that the harassment Clark received from Monterrubio would not have occurred if she were not a woman.”

Brendan McBride, Clark’s lawyer, said the majority opinion will make it difficult, and perhaps impossible, for victims of same-sex sexual abuse and harassment to seek remedies in court.

“I think it is a failure of imagination on the part of the majority and demonstrates that they are out of touch with modern sexual behavior in the modern workplace,” McBride said. “It shows they don’t understand. It doesn’t just depend on the gender of the offender and victim, you have to look more closely at the nature of the conduct.”

McBride said the ruling that tossed out Clark’s lawsuit against the school district — alleging that she was subject to a hostile work environment and improperly fired after complaining about the harassmentwas a setback for the #MeToo movement.

“We are finally giving an opportunity for people who have been victimized by people with power over them in the workplace to come forward and feel they are protected and their voices will be heard. For a significant number of those victims, the courthouse doors have now been closed — including my client,” he said.

The majority and dissenting opinions in Clark’s case included an unusual amount of sniping among members of the all-Republican court, with Boyd accusing the majority of soft pedaling the abuse faced by Clark and ignoring inconvenient evidence of gender-based harassment at her workplace.

Garza, meantime, accused the dissent of distorting facts, engaging in faulty legal analysis and cherry-picking harassment accusations to prove its arguments.

“The dissent falls into the trap of assuming, in a same-sex harassment case no less, that any behavior with sexual connotations is automatically gender based,” Guzman wrote in 15 pages devoted to rebutting the dissenting opinion.

“Focusing on the few relatively salacious incidents, the dissent overlooks the fundamental foundation of this case — the harasser and victim are both the same gender. That dynamic creates different inferences than if the relevant parties are opposite sex,” she wrote.

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