Does Texas law recognize claims of same-sex harassment? A state court of appeals recently decided.

What happened. "Jerry," who worked as a custodian for the San Antonio airport, said that one day at work, the assistant director of the city's aviation department asked him if anything was wrong. On hearing that Jerry was going through a divorce, the assistant director asked Jerry into his office, closed the door, and allegedly suggested that, to counter his sad mood, Jerry should "do something crazy like take off all his clothes." When Jerry tried to change the subject, the other man allegedly persisted, asking Jerry pointedly sexual questions. During this conversation, Jerry said, the other man "kept messing with his pants area."

After 30 minutes of this, Jerry stood up to leave, and the other man offered Jerry his phone number. Jerry refused and reported the incident to his supervisor and to airport police, who investigated. As the investigation was continuing, Jerry's co-workers learned of the situation, and their alleged laughing and pointing made Jerry uncomfortable enough to quit 3 weeks later. He sued the city for sexual harassment and the creation of a hostile work environment. A jury awarded him $90,000 in damages. The city appealed, claiming that Texas law does not recognize a claim for same-sex sexual harassment.

What the court said. The court said that both Texas and federal law recognize claims of same-sex harassment. To make out a good claim, Jerry had to show that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to destroy his opportunity to succeed at work, and that such a workplace would be hostile to a reasonable person in his position. Single incidents should not be viewed in isolation, the court said--it is the cumulative effect of offensive behavior that creates the work environment.

Applying those standards to Jerry's evidence, the court decided that Jerry was not subjected to such frequent or severe sexual harassment that would create a hostile or abusive work environment to a reasonable person in his position. All of the events of which Jerry complained occurred during one meeting of approximately 20 to 30 minutes. The assistant director's statements may have been boorish, offensive, or inappropriate, but not so severe as to alter a term, condition, or privilege of employment. City of San Antonio v. Cancel, Court of Appeals of Texas, 7th District, No. 07-07-0285-CV (7/28/08).

Point to remember: One incident of harassment will seldom be considered severe or pervasive enough to create a hostile environment.