Are a lot of female coaches this vulgar?

 The Texas Supreme Court has dismissed the sexual harassment suit filed by former Alamo Heights teacher/coach Catherine Clark.  The case generated two lengthy opinions.  The majority of six justices signed off on a 66-page opinion while the two justices who dissented confined themselves to a mere 40 pages.  What comes through loud and clear in both opinions is that “locker room talk” is not confined to the boys’ locker room.  (All hail Title IX!!)  This was a same-sex harassment case full of vulgar, crude and unprofessional comments from a female coach toward another female coach.  Coach v. Coach.

The case teaches us two key lessons.  First, to prove up a sexual harassment case you have to show that harassing behavior occurred, but that, by itself, is not enough.  You also have to prove up the motivation of the harasser.  And it’s not “sexual harassment” unless the harasser behaved badly “because of” the other person’s sex.

Coach Clark’s suit failed because she could not produce evidence that she was picked on because she was a woman.  Was she harassed?  Boy howdy YES!  But Coach Clark produced so much evidence of how the other coach was rude, crass, ugly and vulgar towards everyone that it weakened her argument that she was picked on because of her sex.  The majority opinion cited the fact that Coach Clark identified over one hundred incidents, while only a handful targeted her as a woman.  Moreover, Coach Clark’s written documentation specifically cited the reasons that she believed she was being picked on: the other coach thought she was “snotty” with a privileged attitude; that she shouldn’t be bringing her small children to the workplace; that she ought to quit her job and be an “Alamo Heights mom.”  In other words, Coach Clark alleged that the other coach bullied and harassed her because she just didn’t like her as a person.  She thought the other coach was jealous of her.  This weakened the argument that she was picked on because of her gender.

The dissent did not see it that way.  The dissenting judge recited the facts alleged in the case but made one key change: the opinion attributes all of the harassing conduct not to “Ann” but to “Andy.”  In fact the alleged harasser was a woman named Ann. The dissenting judges make their point by making the harasser a man.  The point being: if the same conduct was done by a man we would unquestionably view it as sexual harassment.  “Andy” in the dissenting opinion makes numerous comments about the size of Coach Clark’s breasts.  He speculates about whether or not they are real.  He makes vulgar wisecracks about Coach Clark’s genitals.  The dissenting opinion asks us: if a man did that kind of thing, wouldn’t we all agree it was sexual harassment?  So why should courts treat the same behavior differently just because it was done by a woman?

The majority opinion does not dispute that point.  But this leads to the second key lesson of this case: legal analysis of a “same sex” harassment case is different from an “opposite sex” case. Thus in the view of the majority, changing “Ann” to “Andy” is a material change in the facts, leading to a different legal analysis.

The U.S. Supreme Court decided 20 years ago that “sexual harassment” can be done by a person of the same sex.  But the court noted that the plaintiff still bore the burden of proving that the harassment was “because of” the victim’s sex.  SCOTUS outlined three ways this might be done.

First, if the harasser is motivated by sexual desire for the other person and, therefore, makes unwelcome sexual advances.  So a gay man who is attracted to another man in the workplace, and makes unwelcome advances, is guilty of sexual harassment.  But Coach Clark did not allege that the other coach was a lesbian and produced no evidence (in the majority’s view) that sexual attraction was the motivator.

Second, if the harasser shows hostility to persons of their own gender in the workplace.  Consider for example a male doctor who believes that all nurses should be female. When Bob the Nurse shows up, the doc gives him grief.  There was no evidence in Coach Clark’s case like that.

Third, if the plaintiff shows a direct comparison of how the harasser treated men and women differently in the workplace.  Again, Coach Clark fell short on this because her evidence showed that the other coach was hostile and rude to a lot of people—not just women.

This case made the front page of the Austin newspaper!  No doubt, this is because of the colorful facts of the case and the fact that it happened in a middle school.  Indeed, the facts alleged in the case indicate that female coaches can be just as vulgar and crude as the male coaches are sometimes accused of being.

The case is Alamo Heights ISD v. Clark, decided by the Texas Supreme Court on April 6, 2018. We found it at 2018 WL 1692367.


 Tomorrow: Cheerleaders! At the 5th Circuit!!