3rd Court weighs in on what constitutes a hostile work environment

"The point of a hostile-work environment sexual harassment claim under [Texas Labor Code] 21.051 or Title VII is not to combat sexual harassment as an end in itself, however reprehensible such harassment may be, but to provide a remedy when sexual harassment rises to a level so ‘extreme’ and ‘abusive’ that it deprives the victim of equal opportunity in the workplace." That's the 3rd Court of Appeals in Austin on March 11. In Twigland Fashions Ltd. v. Miller the 3rd Court set aside a verdict for a plaintiff who claimed a sexually hostile environment based on, among other alleged conduct, her manager giving her two full-body hugs, telling her she owed him a kiss every time she messed up at work and telling her he loved her. This alleged conduct occurred over a 49-day period. The 3rd Court went so far as to imply that evidence of a manager directly soliciting sex from an employee must support a sexual harassment claim for a hostile work environment. The court also held that the plaintiff's testimony that she could perform her job well when the purported harasser was not in her store (she ran a women's clothing stop) meant her working conditions were not adversely affected and thus she was not denied equal opportunity in the workplace. Finally, the court held that only abusive working conditions warranted a finding of a sexually hostile work environment. That’s a pretty high standard — and it should be the same standard that applies to hostile environment claims based on race or disability. Using the court's logic, slurs based on race or disability would not a hostile environment claim make. Finding the right balance on this issue is, I know, tough. I talk more about the case in an April 8 podcast.