The Texas Supreme Court has held that a male supervisor inviting selected female employees to lunch could not possibly be sexual harassment. The phrase “it’s just lunch” does not show up in the court’s opinion, but that seems to be the sentiment.
Debra Nicholas, the plaintiff, did not allege that she was the target of sexual harassment. She argued that she got fired because she opposed a discriminatory practice—the sexual harassment of staff members by a supervisor. Piecing the facts together from the court’s opinion, it looks like this all began when Greg Flores, a recently hired VP in the company, invited a female employee to go to lunch with him. Then he invited another one.
One of these women complained about this to the General Counsel, saying it made her feel uncomfortable and harassed. If it continued, the employee warned, she would file a formal complaint.
The General Counsel notified the company CEO in an effort to head off any formal complaints. The CEO brought Ms. Nicholas, his chief of staff, into the meeting.
According to Ms. Nicholas, she and the CEO followed up by meeting with Mr. Flores, informing him of the concerns and advising him to avoid such “risky” behavior. Ms. Nicholas reported that Mr. Flores agreed to change his behavior.
That would have been the end of it, except that three years later, Ms. Nicholas was fired. There had been an organizational shakeup, resulting in Ms. Nicholas working as Mr. Flores’s assistant. Then the company decided to eliminate that position as a cost cutting measure. Without interviewing Ms. Nicholas for any other position, the company just let her go.
It felt like belated retaliation to Ms. Nicholas, and she sued. The jury was convinced, awarding her almost $1,000,000 in damages. That’s enough to justify an appeal all the way to the Supreme Court.
The Supreme Court tossed the whole thing out, ruling that the district court never had jurisdiction of the case. Why? Because the suit was against SAWS—San Antonio Water System, which is a governmental entity owned by the City of San Antonio. SAWS, like Texas school districts, is immune from most lawsuits. That immunity does not apply to a case properly brought under the Texas Commission on Human Rights Act. And a case alleging that the plaintiff has been retaliated against for opposing a practice that is discriminatory under that law would be sufficient to override the immunity and give the court jurisdiction.
However, the Court held that Ms. Nicholas had not properly alleged a case that fit the statute. She was required to allege that she opposed a discriminatory practice—not behavior that might evolve into a discriminatory practice. In its critical ruling, the Court said: “Regardless of what Nicholas subjectively believed about Flores’s conduct, no reasonable person would believe that a handful of lunch invitations amounted to sexual harassment actionable under the TCHRA.” (Emphasis added).
In other words….it was just lunch!
Given a possible “formal complaint,” Ms. Nicholas’s warning to Mr. Flores was probably a wise and prudent precautionary measure. But it was not a statement of opposition to a “discriminatory practice.” Thus, in legal parlance, Ms. Nicholas had not engaged in any “protected activity.” Case dismissed. There goes the big verdict. So long to the $1,000,000.
The case is San Antonio Water System v. Nicholas, decided by the Texas Supreme Court on April 24, 2015.
DAWG BONE: TEXAS SUPREME COURT JUSTICES RESERVE THE RIGHT TO INVITE THEIR LAW CLERKS TO LUNCH.