Tag Archives: Sexual Harassment

DEAR DAWG: Now how exactly am I supposed to investigate a sexual harassment complaint when the complaining party refuses to put anything in writing?

DEAR DAWG: I’ve got an employee who has made a complaint of sexual harassment, but he refuses to give me anything in writing. I think the guy is paranoid about Russian hackers or something, but he’s just adamant about this. Doesn’t this make it more difficult for me to have a good paper trail of what we are looking into, and what we are doing about it?  WANT TO HAVE A GOOD PAPER TRAIL!

DEAR WANT TO:  I guess you’ve been to a lot of legal conferences, and heard the lawyers repeatedly emphasize the importance of that paper trail.  You are right—if the employee does not put anything in writing, it makes your job harder.  But take a look at your policies about this.  I’m looking at one anonymous district’s DIA Local and it says:

The District may request, but shall not insist upon, a written report.  If a report is made orally, the District official shall reduce the report to written form.

 So there you have it.  There will be a paper trail--you create it.  Obviously, you would want to go over that carefully with the person who made the oral complaint to ensure its accuracy. But if you have similar policy language, then the burden is on the district to make sure we have reduced the complaint to writing.


 File this one under: SEXUAL HARASSMENT

DEAR DAWG: Here it is almost spring break, and one of our teachers just filed a sexual harassment complaint over something that happened in September. Sheesh!

DEAR DAWG:  You have to file a complaint within 15 days, right?  I know that’s the rule they applied to me when I filed a grievance years ago when I was a teacher.  The principal had been interfering with my planning and prep time and so I exercised my rights—I filed a grievance.  But the no goodniks in the administration tossed it out because they said it was “untimely.”  They said that Policy DGBA requires grievances to be filed within 15 days of when I knew I’d been done wrong.  I was frustrated about that, but I’m a team player, so I got over it. But now I’m on the other end of this thing. Now I’m the principal, and this teacher has come forward with this grievance way too late.  I intend to deny it on the basis of being “untimely.”  FAIR PLAY IS WHAT I’M ABOUT.

DEAR FAIR PLAY:  Take another look at your policies. DGBA does have a 15-day timeline, but I think you will find that DGBA does not apply to complaints of sexual harassment.  Most districts that use the TASB Policy service put the sexual harassment complaints by employees in DIA Local.  I’m looking at one district’s DIA Local right now, and it says this:

Reports of prohibited conduct shall be made as soon as possible after the alleged act or knowledge of the alleged act.  A failure to promptly report may impair the District’s ability to investigate and address the prohibited conduct.

So don’t deny the complaint on the basis of it being “untimely.” It’s not untimely.  You might want to inform the teacher that it’s helpful to get these reports more promptly, but you have a duty to investigate and take appropriate action, even though the complaint involves things that happened months ago.

When you think about it for a moment, this makes sense.  We don’t want to belittle your gripes about your planning and prep time, but that kind of thing is the sort of routine “labor v. management” dispute that DGBA is all about.  Sexual harassment is a more serious matter.  Furthermore, we know that people are often reluctant or afraid to report a complaint of such a personal nature.  So there is no timeline.  Now that you are one of the “no goodniks in the administration” you need to know these things.


File this one under: SEXUAL HARASSMENT

Tomorrow: Does a sexual harassment complaint have to be put in writing?

DEAR DAWG: I think my principal is sexually harassing me. Do I have to confront him about this?

DEAR DAWG:  I think my principal is sexually harassing me and I want to put a stop to it. But I’m afraid to confront him about it.  I know he’s going to deny doing anything wrong, and I’m afraid that my bringing attention to it will only lead to more trouble.  Our policy requires all complaints to go to the immediate supervisor.  He’s my immediate supervisor. Is there any way around this?  LOOKING FOR AN END RUN.

DEAR LOOKING FOR:  Take a look at your policy again.  Policy DIA Local, as adopted by most school districts, specifically addresses this awkward situation. It says: “An employee shall not be required to report prohibited conduct to the person alleged to have committed it.”  The policy allows you to report to your supervisor, the campus principal, the Title IX Coordinator or the superintendent. So you have some options.


 File this one under: SEXUAL HARASSMENT

Tomorrow: What’s the timeline for filing a sexual harassment complaint?

DEAR DAWG: I thought the cartoon was funny. I didn’t intend to offend anyone. Is this really “harassment”?

DEAR DAWG: I thought the cartoon was funny.  Other people had put cartoons on the bulletin board in the lounge.  Teachers enjoyed checking them out, passing them along and so on.  So I posted the cartoon.  I guess it was a bit on the risqué side, but hey…we’re all grown ups here.  So I thought.

Well.  Some of the ladies who work here were highly offended by the cartoon.  They thought it was vulgar, sexist and inappropriate.  I can assure you that was not my intent. I just thought it was funny.

I think these people are overreacting. And I thought we were moving away from “political correctness.” Can’t a person make a joke anymore?  Now someone has filed a formal complaint, accusing me of “harassment.”  What do you think?  NO MORE CARTOON POSTING FOR ME.

DEAR NO MORE: Was it “harassment”? That’s a decision that will have to be made by the administrator who is handling the complaint.  But we can tell you what the policies of most districts say about this.  Take a look at your district Policy DIA Local.  You will probably find that it   defines “harassment” in the way the courts have generally defined it.  The definition of “prohibited harassment” applies to conduct that is “so severe, persistent, or pervasive” that it 1) has the purpose or effect of unreasonably interfering with work performance; 2) creates an intimidating, threatening, hostile or offensive work environment; or 3) otherwise “adversely affects” performance, environment or opportunities.

You say that you did not intend to offend anyone, but your intent is not the only issue.  What was the effect?  That matters also.  A single insensitive remark, or cartoon posting, will usually fall short of being “so severe, persistent, or pervasive” that it “adversely affected” your co-workers.  But remember: the way that supervisors prevent big problems is by taking action on the small stuff.  This is a good example of that.  You didn’t intend any harm, but you caused some.  Your supervisor may not label it as “harassment” but in this Dawg’s opinion, your supervisor should take corrective action to make sure there is no repeat performance.

There are lots of funny cartoons. Find a better one next time.  You can post a cartoon that ridicules lawyers.  We won’t complain.


File this one under: SEXUAL HARASSMENT

Tomorrow: Do I have to directly confront the person who is harassing me?

DEAR DAWG: Someone told me it’s OK for me to have sex with a co-worker as long as we are both happy about it. True? NOT SAYING I WOULD…JUST WANT TO KNOW MY OPTIONS.

DEAR NOT SAYING:  It’s above the Dawg’s pay grade to know whether or not it is “OK” for you to do this.  Lots of variables apply to that question.  We don’t know if you are referring to “OK” in terms of morality, marital fidelity, workplace harmony, or legalities.  So we will confine our answer to what we can speak about, which is the legal angle.

Let’s assume that Person A and Person B are employed at District C.  Person A makes sexual overtures toward Person B, to which Person B responds YIPPEE! YES!! BY ALL MEANS!!!  WHAT TOOK YOU SO LONG?????

Thus, with regard to Person A, Person B’s welcome mat is out, so to speak.  What we can say about that for sure, is that Person A has not engaged in sexual harassment.  Sexual activity of employees with students is always forbidden, but among the grownups who work for the district, the key term is “unwelcome.”

I always think of my friend and colleague Wayne Haglund when discussing this issue. Wayne is the lawyer who once pointed out the implications of this term “unwelcome.” It means that two employees in your district are free to have a sexual fling with each other as long as both parties are happy.

But there’s a hitch.  Once they get started they cannot stop. As long as all activities are “welcome” by both parties, you do not have sexual harassment.  As Wayne pointed out, it’s when one party pulls up the welcome mat that the legal issues arise.

Of course romantic and/or sexual activity in the workplace can be a problem even if it is enthusiastically welcomed by both parties.  That rendezvous at the copy machine lingers on much  longer than necessary. That lunch break stretches out.  Googly eyed employees are not as attentive to the task as they should be.  Any activity that gets in the way of the work being done is a problem—but it is not “sexual harassment” unless it is “unwelcome.”

This week here at the Daily Dawg we are going to focus on LOVE GONE WRONG aka “sexual harassment.” After all, it’s February, and the great Feast of Love (V-Day) approaches.  So we will focus on this issue this all of this week.  Stay tuned!


File this one under:  SEXUAL HARASSMENT

Tomorrow: Can it be “harassment” if I had no intention of giving offense?

5th Circuit Speaks to Sexual Harassment Claims

A 5th Circuit decision involving a Louisiana school district clarifies four key points about sexual harassment.

First, the court reminds us that when the harassment is done by an employee’s supervisor, the concept of “strict liability” applies. This means the employer is liable, regardless of what a wonderful anti-harassment policy it has, and what terrific training it has provided. Strict liability is strict.   However, the employer can mount an “affirmative defense” which leads to our second point.

The second point in the decision outlines the elements of that affirmative defense. This defense is only available in cases where the plaintiff has not suffered a “tangible employment action.” In other words, the plaintiff alleges that he/she was harassed, but was not fired, demoted or otherwise punished directly.  If that’s the situation, then the employer can avoid liability by showing that 1) it implemented suitable institutional policies and educational programs regarding sexual harassment; and 2) the employee unreasonably failed to take advantage of preventive or remedial opportunities provided by the employer.

The third point made by the court hones in on what it means for the employer to institute good policies and practices.  The school district in this case had a decent policy, but the plaintiff produced testimony from several long time district employees to the effect that they did not know about the policy and had never been trained on it.  That was enough for the court to deny the district’s motion for a summary judgment in its favor. There was, according to the court, a factual issue that needed to be sorted out.

Finally, the case spells out what it means to be a supervisor: “A person is a ‘supervisor’ for purposes of sexual harassment law when he or she can take tangible employment action against the victim.  A tangible employment action is 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.”

The main point for Texas public schools in this case is to get the message about publicizing its anti-harassment policies and getting people trained on them. Equally important is evidence that you have done that. It would be wise to have people sign a document to verify that they know about the school’s policy; they know who to contact if they have a problem or complaint; they know that they will not be retaliated against; and they have received training about all this.  Just having an old, yellowing copy of the fine print of the policy posted in the lunchroom may not be adequate.

The case is Pullen v. Caddo Parish School Board, decided by the 5th Circuit on July 20, 2016.


File this one under: SEXUAL HARASSMENT

It’s a fact. I’m more buff than your typical principal. So what’s wrong with that???

Dear Dawg: I guess the teachers thought it would be amusing to put that picture of me, the principal, on the wall in the teacher’s lounge.  But I think it would have been better if they had used a more professional picture. They caught me shortly after my afternoon workout on the track, dripping with sweat, shirtless.  The caption read: “OUR RIPPED PRINCIPAL AND FAVORITE VALENTINE!  WE LOVE YOU!!”

Well….on the one hand, I am honored, and being loved by the teachers is a good thing.  On the other, this sort of smacks of sexual harassment, doesn’t it?  What should I do?  IT IS A GOOD PICTURE. WANT ONE?

DEAR IT IS:  No, you don’t need to send the picture. I will take your word for it. We congratulate you on your buff appearance and the fact that your teaching staff holds you in high esteem. But yes, we think you should take down the picture and put it in your personal files.  No doubt you will want to show it off someday to your fellow residents at the Linger Longer Assistive Living Facility.

The Dawg wishes all readers a happy V-Day!  But keep it platonic, people!


How to respond to a sexual harassment complaint.

Responding to a sexual harassment complaint is too big of a topic to deal with in a short Daily Dawg entry, especially on a Friday. But we do know the first two words you should say when it lands on your desk.  No….not the first two words you are thinking.  Try these two instead:


You should start by saying THANK YOU.  That’s a good start toward showing that the district disapproves of sexual harassment and seeks to eliminate it.  It indicates that you understand that sexual harassment is a type of cancer that feeds on silence.  So when someone speaks up about it, they are doing the district a service.  So say THANK YOU.


News Bulletin: Female Coaches Can be Just as Crude and Vulgar as Their Male Counterparts! All Hail Title IX!!

We can’t accurately describe all the comments allegedly made by Coach Anne Monterrubio to Coach Catherine Clark at Alamo Heights Junior High.  It would never get past your school district’s filter. Suffice it to say that there was a good deal of vulgarity, some of it focused on Coach Clark’s female parts.  Coach Clark complained about this to the Athletic Coordinator and later to the principal.  Coach Clark eventually filed a lawsuit alleging sexual harassment and retaliation.  In the suit, she alleges that the district did not respond much, and did not follow its own policies. The district tried to get the case tossed out, asserting that Coach Clark had not properly alleged a genuine cause of action. The Court of Appeals refused to dismiss the case.

That does not mean that Coach Clark has a good case—it just means that she alleged facts that, if proven true, could amount to a legitimate cause of action.  The court was ruling on a preliminary matter—a “Plea to the Jurisdiction.”  That means the court has to give the benefit of every doubt to the plaintiff. Keep that in mind as you read on.  This case has a long way to go.  In fact, the district has filed a Motion for En Banc Reconsideration.  That Motion primarily argues that the court erred in seeing these facts as harassment “because of sex.”  The Motion asserts that Coach Monterrubio dispensed inappropriate remarks to male and female coaches alike.  Behavior like that might be called bullying, but the Motion asserts that is it not “based on sex” and therefore, is not sexual harassment.

We shall see what the court does about that, but in the meantime, we think the case is worth your attention because of the court’s interpretation of a TASB-promulgated local policy that has been adopted by many districts.

The lawsuit alleges that Coach Clark first reported that she was being harassed to the Athletic Coordinator.  The suit alleges that “[The Athletic Coordinator]…failed to report Clark’s complaint to any member of the administration as required by district policy.” (Emphasis added).

Later, Coach Clark reported harassment to the principal.  The principal did exactly what you would expect a principal to do. She investigated the matter by interviewing the key players;  she made a decision; she communicated that decision.   So how did she supposedly fail to follow policy?  The court put it this way:

Instead of reporting Clark’s complaint to the appropriate district official, [the principal] conducted her own investigation….”

After the investigation was complete, the principal sent a letter to Clark including her findings, but the court noted that “[the principal’s] report was not filed with a district official as required by district policy.”  (Emphasis added).

Where does the court get the idea that sexual harassment has to be reported to someone other than the principal?  From Policy DIA (Local). In a footnote, the court notes that this policy in AHISD required that employees should report sexual harassment to the employee’s immediate supervisor or the principal. But it goes on to say that “Any district supervisor who receives a report of prohibited conduct shall immediately notify a District official, including the Title IX coordinator….or the Superintendent.”

The court reads this policy as requiring the principal or supervisor who receives a report to also notify the Title IX coordinator or the superintendent.  When all the evidence is presented, the court may find that the proper parties were, in fact, notified.  But the allegation of a failure to follow policy was sufficient to create a “prima facie” case for the plaintiff.

So take a look at your DIA Local.  We looked up two districts’ policies. They both included the following language:


Any district supervisor who receives a report of prohibited conduct shall immediately notify the appropriate District official listed above and take any other steps required by this policy.

In both districts the term “District official” was defined to include the Title IX Coordinator, the ADA/504 Coordinator and the superintendent.

The case is Clark v. Alamo Heights ISD, decided by the Court of Civil Appeals in San Antonio on October 21, 2015. We found it at 2015 WL 6163252.



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.