Sexual Harassment-Hostile Work Environment

There are two types of sexual harassment recognized as being against the law- quid pro quo and hostile work environment.  We will discuss hostile work environment and leave the other for later.  A plaintiff asserting a hostile work environment (HWE) discrimination claim against her employer has the burden of establishing not only that (1) she is a member of a protected class (a woman); (2) she was a victim of uninvited sexual harassment; and (3) the harassment was based on sex; but also (4) the harassment affected a term, condition , or privilege of her employment.  Further to hold her employer vicarously liable, the plaintiff must also prove that her employer knew or should have known of the harassment and failed to take prompt remedial action.  However, where the claim is based on actions by the plaintiff’s supervisor, the plaintiff need not prove that her employer knew or should have known of the harassment and failed to take action.  The appeals courts have been very restrictive against these claims and have lately seemed to favor the harasser over the victim somewhat by requiring quite high standards of proof and finding that some rather extreme sexual harassment as not being  severe, abusive or extreme enough to qualify as actionable sexual harassment.  For a review of some of these cases and for an example of a court reversing a jury’s decision that found that the female plaintiff had been sexually harassed, see the recent Texas case of Twigland Fashions, Ltd. v. Miller out of the Third District in Austin, Texas.  The Twigland case appears to be just the court of appeals substituting its opinion as to what constitutes sexual harassment for a jury’s opinion.  However, the opinion does contain several cites to other cases holding both sides of the issue and will show you how some of the courts have differed over this issue.  In any event, it appears that what some women might think is sexual harassment may be not quite what some of these courts of appeal have ruled.  This may be some comfort to harassers and their employers but certainly not to the women employees, who have to work around males emboldened by these restrictive opinions.  I think that most women reading the opinion would be appalled that the court ruled that the action of the supervisor was not severe enough to be actionable.