SAME-SEX HARASSMENT AFTER THE SUPREME COURT'S DECISION IN ONCALE: A Recent Texas Case Illustrates The Issues

Dr. Luis Mota, a periodontist, alleged that he was harassed by his supervisor, Dr. Raul Caffesse, also a periodontist. Accordingly, Mota sued his employer, the University of Texas Houston Health Science Center. A jury ultimately found for Mota, agreeing with him that Caffesse had engaged in a classic pattern of harassment. The Fifth Circuit Court of Appeals recently upheld the verdict.

The case provides one example of how same-sex harassment cases are being litigated now — in light of the Supreme Court's ruling in 1998, in Oncale v. Sundowner Offshore Services. Oncale held that same-sex conduct can be the basis for a sexual harassment lawsuit, but only as long as the harassment is "because of sex."

The Facts

Caffesse was world-renowned among periodontists. A family friend of Mota's, Caffesse encouraged Mota to apply for a job at the University and, once hired, took him under his wing.

After Mota's arrival, Caffesse arranged for them to attend a conference together–and even to share the same room. During the conference, Caffesse sexually propositioned Mota, warning that he had to "get along with him and that people who worked with him had to get along with him and that he only wanted to know [Mota] better."

The unwelcome sexual advances recurred at a series of periodontic conferences across the country over a number of months. When Mota rejected the advances, Caffesse admonished him to keep quiet. He also implicitly threatened to have Mota fired: When Caffesse had grown to dislike people in the past, Caffesse allegedly told Mota, Caffesse had "helped them leave" the University.

Mota also alleged (and the jury also agreed) that after he filed a formal complaint, the University retaliated by denying him a stipend he had earned, refusing his request for paid medical leave, and refusing to grant him access to equipment and his office during the unpaid leave he ultimately took.

Mota filed suit initially against the University under Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, including sexual harassment. Because Mota was an employee of an educational institution that receives federal assistance, he might also have filed his suit against the University under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education.

Plaintiffs sometimes prefer Title IX because it does not have any administrative prerequisites and damages are uncapped. However, many courts have held that discrimination claims brought by employees of educational institutions–as opposed to students–are pre-empted by Title VII, so Mota may have assumed that, as an employee, he could not bring a Title IX claim. In any event, whatever his reasons, Mota chose to sue under Title VII alone.

After initiating suit against the University, Mota later added claims against Caffesse for defamation and intentional infliction of emotional distress. Because Title VII does not permit individuals (as opposed to employers) to be held liable, those claims were brought under Texas state law.

Caffesse and Mota settled out of court for $290,000, but, as noted above, the case against the University went to trial. The verdict against the University came to nearly $900,000 — including compensatory damages, front pay, back pay, and attorneys' fees.

Proving Harassment, and Proving that the University Should Be Liable

To prevail against the University, Mota had to prove both that he suffered actionable sexual harassment, and that the University should be held liable for that harassment.

Hostile environment harassment occurs when an employee is subjected to unwelcome sexual conduct that is severe or pervasive, and creates a hostile or offensive working environment. Those elements were clearly satisfied by Caffesse's conduct in this case — particularly in light of Caffesse's recurrent advances and his implied threat to retaliate.

What about the requirement of proof that the University should be held liable? Under Title VII, an employer can be held automatically liable for sexual harassment committed by a supervisor that (as was the case here) does not result in a tangible employment action. The employer can defeat liability, however, if it is able to make out a two-prong affirmative defense.

To establish the defense, the employer (here, the University) must show, first, that it exercised reasonable care to prevent and correct harassment. It must also show that the victim unreasonably failed to take advantage of preventive and corrective opportunities made available by the employer.

Same-Sex Harassment: Part of the Legal Landscape Now?

So far, what is remarkable about the Mota case is how unremarkable it was. As summarized above, it was litigated more or less just as an opposite sex harassment case would have been. Did it matter at all that Caffesse was a man harassing a man? The answer is, in theory, yes, but in practice, no.

The Supreme Court confirmed in Oncale that same-sex harassment is actionable under Title VII as long as it happens "because of sex." With opposite-sex harassment, courts have often overlooked this requirement, simply assuming that when a man engages in sexual conduct toward a woman, it must be because of sex. But the Court in Oncale stressed that courts need proof that this requirement is met before they can conclude that actionable harassment had occurred.

The "because of sex" requirement can be proven in different ways, though the easiest is evidence that the harassment is motivated by sexual desire. In a same-sex harassment case, if a court has direct evidence that the harasser is homosexual, or can infer that from the nature of the conduct, it will generally presume the harassment occurred "because of sex"–the victim would not have been selected but for his sex.

Where there is no evidence of homosexuality or sexual desire, satisfying the "because of sex" requirement is more difficult. Post-Oncale courts have relied on comparative evidence about other victims (does the harasser in fact only target victims of one sex?), evidence about the nature of the conduct (did the harasser do something obviously sexual?), and evidence of the harasser's animosity toward his own sex (for example, was the harasser policing gender roles by punishing an effeminate man?).

Can Fulfillment of the "Because of Sex" Requirement Be Presumed?

Strikingly, the Fifth Circuit's opinion in this case is devoid of any discussion about whether Caffesse singled out Mota "because of sex." The opinion contains no discussion of whether Caffesse is gay, nor does it note whether his past victims (there allegedly were some) were all male, or whether Caffesse bore animosity toward men.

It seems that the conventional presumption in opposite-sex cases–that a harasser engaging in sexual conduct is acting out of sexual desire that is reserved for one sex alone–was indulged here, even though the case involved same-sex harassment. That may be evidence that cases of same-sex harassment cases are becoming a regular part of the legal landscape — a laudable development.

Nevertheless, even if this presumption is applied in same-sex and opposite-sex case alike, it may be in conflict with Oncale — which stressed the need for proof of the "because of sex" requirement in sexual harassment cases in general, and in same-sex harassment cases in particular.