Offensive behavior is not necessarily sexual harassment, even if it is sexually offensive, unless it is “because of sex.”

In Alamo Heights Independent School District v. Clark, 2015 WL 6163252 (Tex. App.—San Antonio 2015), one female coach offended another—the employee who sued—by frequent comments about the her sexual anatomy. The Trial Judge dismissed the employees claim of sexual harassment on the employers argument that the harasser used the same behavior toward many employees, male and female, and that the offensive behavior was not “because of” the plaintiff’s sex. However, the court of appeals reversed because the harasser’s comments were about the plaintiff’s personal sexual anatomy, a therefore actually be “because of sex.” As an El Paso employment lawyer representing fired and injured workers its hard for me to understand how a trial court could dismiss such a claim; but it goes to show how difficult these cases can be. Fortunately, the Court of Appeals reversed the case and sent it back to trial. It should be noted that complaining about the harassment is always important even if does not meet the standard of “about sex” if in good faith you believe that the harassment is sexual in nature because the law protects your from being retaliated against if you do make a complaint in good faith to either the EEOC or to your supervisor or your companies HR department. You should always see a competent board certified employment lawyer to determine what are your rights and to determine how to properly make a claim of sexual harassment or other types of discrimination (race, age, disability for example).