Texas: Invitations to Lunch Do Not Constitute Sexual Harassment

By SHRM Online staff May 20, 2015

An employee could not reasonably believe that lunch invitations by a company vice president constituted sexual harassment, the Texas Supreme Court held.

Debra Nicholas was an employee of the San Antonio Water System (SAWS), working as the chief of staff for SAWSs CEO. The CEO called Nicholas into a meeting with the general counsel, who said Greg Flores, a recently hired vice president, had made a female paralegal uncomfortable when he repeatedly invited her to lunch. According to Nicholas, Flores had also invited a second female employee to lunch.

Nicholas claimed she and the CEO met with Flores and he admitted to inviting the women to lunch but denied he intended to sexually harass either woman and said he would change his behavior. Nicholas also alleged that the CEO said he would not allow a member of the executive team to sexually harass anyone. She also said she told Flores it was “not a good idea for him to be going out with women in the organization . . . by himself,” because it could be construed as inappropriate. Flores denied ever having a conversation with the CEO and Nicholas about his lunch invitations.

When the CEO resigned, his replacement chose to hire his own chief of staff. Nicholas was reassigned to an assistant vice president position that reported directly to Flores, but the position was eliminated as part of what SAWS contended were organization-wide cost-cutting measures, and Nicholas was not interviewed for any other position. Nicholas maintained her termination was retaliation for her confronting Flores about the lunch invitations, and that the retaliation was delayed because Flores had no authority over her until her reassignment.

Nicholas sued SAWS under the Texas Commission on Human Rights Act (TCHRA), alleging SAWS retaliated against her for opposing a discriminatory employment practice. The jury found Nicholas opposed sexual harassment by counseling or reprimanding Flores, was fired because of it, and awarded her nearly $1 million in damages. SAWS appealed, arguing no reasonable person could have believed sexual harassment under the TCHRA had occurred, and therefore Nicholas did not engage in a “protected activity” under the TCHRA when she confronted Flores. The court of appeals affirmed the trial courts judgment, and SAWS appealed to the state’s supreme court.

SAWS is a governmental entity owned by the City of San Antonio and is generally immune from suit, according to the high court. However, the legislature waived immunity for claims properly brought under the TCHRA. The court explained that to establish a violation of the TCHRA, Nicholas had to show that: (1) she engaged in an activity protected by the TCHRA, (2) an adverse employment action occurred, and (3) there exists a causal link between the protected activity and the adverse action.

Nicholas contended she opposed a discriminatory practice in the form of sexual harassment. Sexual harassment is a recognized cause of action under Title VII and the TCHRA, the supreme court stated. Opposition to a discriminatory practice is a protected activity irrespective of the merits of the underlying discrimination claim. However, the court went on to say that the employee must demonstrate a good-faith, reasonable belief that the underlying discriminatory practice violated the TCHRA.

The supreme court explained that the standard in retaliation cases is “an objectively reasonable belief that a violation is actually occurring based on circumstances that the employee observes and reasonably believes.” Floress lunch invitations may have been unwelcome, but no reasonable person could believe they constituted sexual harassment actionable under the law.

“We do not mean to say that lunch invitations can never be a component of a viable sexual-harassment claim, but under the facts of this case the lunch invitations were not so severe or pervasive as to alter the conditions of employment or create an abusive work environment,” the high court said.

The supreme court found that Nicholas could not have reasonably believed Floress lunch invitations constituted an unlawful employment practice. Therefore, her response in counseling or reprimanding Flores was not a protected activity under the TCHRA. Nicholas, therefore, not only failed to prove her retaliation claim, she never pleaded one under the TCHRA. SAWSs immunity from suit was therefore not waived, and the trial court lacked jurisdiction over Nicholass claim. The supreme court reversed the judgment of the court of appeals and dismissed Nicholass claim.

San Antonio Water Sys. v. Nicholas, Texas, No. 13-0966 (April 24, 2015).


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