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Four tips to evaluating (and hopefully dismissing) sexual harassment claims.

Sexual harassment cases can be difficult. In addition to the stress and emotional costs to everyone involved, the financial risk to the company can be incredibly high. Here are some things we look at to determine the chance of getting the case dismissed before trial.

The Texas Commission on Human Rights Act ("TCHRA") and Title VII of the Civil Rights Act of 1964 ("Title VII") prohibit what is typically referred to as "sexual harassment." The plaintiff in a sexual harassment lawsuit may recover back pay, front pay, compensatory damages (e.g., for emotional pain, mental anguish, or injury to professional standing), punitive damages, costs, and attorneys' fees.

Sexual harassment cases can be difficult to defend, but a good result is possible depending on the facts. The parties should consider the following when evaluating a sexual harassment claim by a former employee.

Did the employee exhaust her administrative remedies?

The TCHRA and Title VII require a plaintiff to file an administrative complaint with the Texas Workforce Commission ("TWC") or Equal Employment Opportunity Commission ("EEOC") before filing a lawsuit. The plaintiff has 180 days to file a claim with the TWC or, alternatively, 300 days to file a charge with the EEOC. The time limit begins to run on the day when the discrimination allegedly or occurred or, alternatively, when the employee becomes aware of the discriminatory act; it does not begin to run when the effect of that act takes place or becomes most painful. An employee that fails to file a charge by the deadline is barred from bringing a lawsuit under either act.

Was there a tangible employment action?

One of the initial inquiries in evaluating a sexual harassment claim is whether the complaining employee has or has not suffered a "tangible employment action." If she has, her suit is classified as a "quid pro quo" case; if she has not, her suit is classified as a "hostile environment" case. A "tangible employment action" constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Alaniz v. Zamora-Quezada, 591 F.3d 761, 772 (5th Cir.2009).

In a "quid pro quo" case, the court must determine whether the tangible employment action suffered by the employee resulted from her acceptance or rejection of her supervisor's alleged sexual harassment. If the employee cannot show such a nexus, then her employer is not vicariously liable under Title VII for sexual harassment by a supervisor; but if the employee can demonstrate such a nexus, the employer is vicariously liable.

Although quid pro quo cases are notoriously difficult to win at the summary judgment stage, they may be dismissed if the employer can demonstrate the lack of a requisite nexus between the harassment and the adverse employment decision. For example, in Frensley v. North Miss. Medical Center, Inc., the Fifth Circuit affirmed the dismissal of a nurse's quid pro quo claim based on an allegation that she was not promoted because she refused to go out for drinks with her supervisor. 2011 WL 3965668, *3 (5th Cir. 2011). The Court held that dismissal was proper because the employment decision was made before the alleged harassment. Id.

Did the employee promptly report the harassment?

If the employee did not suffer a tangible employment action, the case is considered a "hostile environment" case and the employer may assert the affirmative defense that (1) it exercised reasonable care to prevent and correct promptly the harassment and (2) that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise. Casiano v. AT&T Corp., 213 F.3d 278, 284 (5th Cir. 2000).

In Wyatt v. Hunt Plywood Co., 297 F.3d 405 (5th Cir. 2002), the plaintiff reported her immediate supervisor's sexual harassment to her next higher supervisor. Instead of remedying the problem, that supervisor also began to sexually harass her. Id. at 407. The court held that the plaintiff's failure to report either of her supervisors' behavior to individuals listed in the sexual harassment policy was unreasonable. The employer was able to establish the elements of the affirmative defense because it had an adequate employment policy and terminated both supervisors upon becoming aware of the offending conduct.

According to the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), a sufficient anti-harassment policy would include:

  • Dissemination to employees;
  • Assurance that the harassing supervisors can be bypassed in registering complaints;
  • Procedures to track the conduct of supervisors;
  • Prompt investigations; and
  • Effective remedial actions.

Was the harassment severe and pervasive?

In Indest v. Freeman Decorating, Inc., an employee claimed her supervisor made several vulgar remarks and innuendos about his own anatomy that she alleged constituted a hostile work environment. 164 F.3d 258, 264 (5th Cir. 1999). The Fifth Circuit suggested that the remarks were not severe and pervasive enough to sustain a claim for sexual harassment based on hostile work environment. Id. at 264. "Incidental, occasional or merely playful sexual utterances will rarely poison the employee's working conditions to the extent demanded for liability. Discourtesy or rudeness, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in terms and conditions of employment." Id. at 264.

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