Texas Supreme Court holds that “Sex Talk” between same sex employees by itself is not discrimination

Alamo Heights Independent School District v. Clark, 544 S.W.3d 755 (Tex. 2018) The Texas Supreme Court stated that harassment is illegal “discrimination” only if it is “because of” sex or some other protected characteristic.

The Court held that harassment that is merely “about” sex is not, standing alone, sex “discrimination.” Thus sex talk that is offensive is not necessarily harassment if it is for no other purpose. In this case, the plaintiff alleged “same sex” sexual harassment. Both the plaintiff and the harasser were women. Much of the harassment involved vulgar language and conduct that was “about” sex, but it was not clear that the harassment was because of the plaintiff’s sex. The trial court granted the employer school district’s dismissal based on failure to allege facts supporting an inference of discrimination. The Supreme Court identified three ways harassment might be sex discrimination.

First, harassment might be illegally discriminatory if it is motivated by sexual attraction. If the sex talk is between men and women it is presumed to be “motived by sex, but the presumption that a harasser is motivated by sexual attraction does not apply in the case of same sex harassment. therefore the harassed employee must have additional facts to support an allegation of harassment because of sexual attraction. In other words you have to prove the harasser wants to have sex with you.

Second, same sex harassment might also be illegally discriminatory because of the harasser’s hostility toward the victim’s sex,

Third, same sex harassment is illegally discriminatory if the harasser harasses only persons of one sex and not the other (whatever the motivation), but there was no comparative evidence or facts to show that the harasser treated employees of one sex differently than employees of the other sex. So you might win if you can prove the harasser only did this to women and not men (if the harasser was a woman as in this case).

The Court rejected a fourth method of proof the court of appeals had endorsed: evidence that the harassment included of comments about the anatomy of one sex andnot the other (or, as the Court put it, comments about “gender specific anatomy” and characteristics). The Court held that motivation is the key, and a harasser’s comments about anatomy of one sex or the other is notnecessarily harassment “because of” the listener’s sex. “Regardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.”

So get ready, if you are offended by sex talk from your own sex, the Texas Supreme Court says you have better “buck up” and learn to deal with it. A win for those who like to talk dirty to their own sex!

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