Sexual Harassment in Texas Now:  What You Need to Know

Sexual Harassment in Texas Now: What You Need to Know

Big changes to the law in Texas on sexual harassment become effective on September 1, 2021.  These new changes have gotten surprisingly little publicity but make it easier to pursue a sexual harassment case in Texas. 

The changes are in a new subchapter to Texas Labor Code Chapter 21 addressing only sexual harassment claims.

First, in the past, laws that protected people from sexual harassment only applied to companies with 15 or more employees for at least 20 weeks of a year.  So, for people who worked for small companies, there was no real and effective protection from sexual harassment. 

Second, the harasser usually could not be sued individually under Title VII or Texas Labor Code Chapter 21 for sexual harassment.  The harasser might be sued for assault when there was unwelcome touching.  However, if there was no assault involved, the harasser typically could not be sued individually.

Finally, under Texas law, the period to file a sexual harassment charge was a short 180 days.

That all just changed in Texas. 

Under this new law, an “employer” means a person who employs one or more employees.  It also can mean a person who “acts directly in the interests of an employer in relation to an employee.”

This fills a gap for employees in small companies.  Now, anyone who works for a company with just one employee has protection from sexual harassment. 

The biggest change is that the harasser may be considered an “employer” under the law if the harasser acts directly in the interests of an employer in relation to an employee. With this definition, if there is a coworker harassing his or her peer, that coworker really won’t fit in the definition of “employer.” However, if a boss is harassing a subordinate, there is a good chance the boss can now be sued individually. That is a new and very big change to Texas law.

Finally, the deadline to file a charge of discrimination in Texas for sexual harassment has now been increased to 300 days.  That gives victims a little bit more time to decide whether to pursue a claim for sexual harassment or not.

This increased deadline from 180 days to 300 days only applies to sexual harassment.  All other types of discrimination claims under Texas law are still subject to the normal 180-day deadline.

These changes are huge.  Given that the Texas legislature has lagged far behind in changing its laws to protect women on equal pay issues, it is great to see the Texas legislature get out in front on sexual harassment. 

Even though these changes are not effective until September 1, 2021, expect to see the number of sexual harassment claims increase. For the victims who fell between the cracks in the law before, this is a very welcome change. For the people who harass employees and who now fall within the definition of “employer” and can be sued individually now, this will be a very unwelcome change.

What is Discrimination?

What is Discrimination?

The EEOC recently sued Autos of Dallas, a luxury auto retailer in Plano, for race discrimination.

At a holiday party, Autos of Dallas awarded its African American salesman a trophy that labeled him the employee “Least Likely to Be Seen in the Dark.”  The employee (and others) found the trophy to be very offensive. 

After the employee complained to the General Manager, he was told it “was a joke.”  Autos of Dallas took no action on the employee’s complaint.

The employee ultimately resigned after he continued to be subjected to a hostile environment that included other employees telling he that he needed to smile to be seen in the poorly lit section of the dealership.

When the EEOC sued, the Dallas Morning News quoted Autos of Dallas’s attorney as saying the company had investigated the claim and “found no evidence of discrimination.”

So that begs the question:  what is discrimination?

One of the best definitions of both prejudice and discrimination that I’ve seen come from Robin Diangelo’s book, White Fragility. As Diangelo describes it, to understand racism, we need to under the difference between “prejudice” and “discrimination.”

Prejudice, as defined by Diangelo, is “pre-judgment about another person based on the social groups to which that person belongs.”  Prejudice consists of thoughts and feeling—which can include stereotypes, attitudes and generalizations—based on little or no experience then projected on to everyone from that group.“Discrimination” is action based on prejudice.  This action can include ignoring, exclusion, threats, ridicule, slander and violence.

Diangelo’s simple definitions make it very clear to see that what happened to this auto salesman is discrimination.  He was ridiculed and made fun of by his coworkers simply because of the color of his skin. 

Instead of acknowledging a grave error in judgement, Autos of Dallas doubled down on its prejudice by describing it “as a joke.”

Whether this employee will win his lawsuit remains to be seen.  A court might find he was not subjected to a hostile work environment because what happened might not have been “severe” enough or “pervasive” enough to meet the tough legal standard.  Because the employee was not fired, but quit, a court might find he was not constructively discharged under the tough legal standard. 

However, that this happened at all demonstrates the need for continued discussion and education about what is discriminatory behavior.  When whether to discuss “critical race theory” is such a hot button issue, this case demonstrates why discussions need to continue.

At least one Autos of Dallas employee thought it would be an acceptable “joke” to (1) create this award, (2) actually purchase a trophy with which to make this award, and (3) call this African American employee to the front of the room at the company holiday party and to award him this trophy for being Least Likely to Be Seen in the Dark. The employee was told that it “was a joke” after he complained.  This demonstrates exactly why we need to continue to teach people about racism and discrimination. 

The people in the world who did not know that awarding this trophy is wrong on many levels have much more to learn. This was no joke.  This was discrimination—it was action (ridicule) based on prejudice.  Kudos for the EEOC for suing. 

What Sayeth The Jury?

What Sayeth The Jury?

A little more than a year ago, jury trials screeched to a halt with the onset of the COVID-19 pandemic.  Over the year, courts across the country grappled with when and how to hold jury trials again.  Some courts held trials by Zoom.  Other courts continued to hold jury trials in person while using a variety of safeguards to protect the jurors and parties.

Now that more courts are opening up, everyone is curious to see what impact the pandemic has had on juries and how they view cases.

Jurors are speaking—and they are speaking loudly with their verdicts.

In recent months, in four employment trials, jurors have hit employers with eye-popping seven figure verdicts.

These verdicts include:

  • $6.85 million jury verdict against FedEx Freight in Seattle for disability discrimination and retaliation.
  • A $3 million jury verdict for disability discrimination against Union Pacific Railroad Coat in Idaho.
  • A more than $2 million jury verdict to a Burger King employee in a disability discrimination case.
  • A $4 million jury verdict in a sex discrimination case in Dallas, Texas.

What is the reason for these recent seven figure jury verdicts in employment cases?  No one knows. 

However, what is interesting is that three all involved disabled workers.  It is possible that the pandemic has driven home just how important it is for every person –even those with disabilities—to have the right to work and to support their families. 

Juries seems to have lost patience with employers who won’t allow people who want to work the opportunity to work. 

This is not the final word on these cases.  Most of these cases will likely be appealed.  And, in most of these cases, statutory damages caps will reduce the awards.

For example, in the FedEx case in Seattle, the jury verdict awarded about $5 million in punitive damages.  However, because those damages were subject to a statutory cap of $300,000, those damages were reduced by the court.

In each case, the prevailing plaintiff can seek attorney’s fees and those fees will likely add substantial amounts to the verdicts.  In the FedEx case, the court awarded attorney’s fees and costs of $1.1 million to the winning plaintiff’s lawyer.

We don’t know what is causing this trend of very significant verdicts in the employment cases that have gone to trial in recent months.  However, jurors are sending employers a message.

Whether employers receive the message remains to be seen.

Religious Discrimination in North Texas

Religious Discrimination in North Texas

The EEOC recently obtained a judgment and injunctive relief against a North Texas healthcare provider for religious discrimination and retaliation.

The facts are troubling.  The owner of the healthcare practice was Christian.  However, some of employees were not.  And even those employees who were practicing Christians were not all comfortable being forced to participate in religious meetings at work.

The employer held daily mandatory meetings which all employees had to attend.  These meetings typically began with a reading or study of Bible verses and a discussion of how religious principles could be related to or applied to the personal lives of the employees.

A Buddhist employee asked to be excused from participating in the morning meetings.  The employer denied this request. It fired her after she continued to ask for this accommodation for her own personal religious beliefs.

Another employee told the owner it was wrong to require employees to attend meetings at which a specific religion was discussed in such detail.  A week later, she got demoted. She (and other staff) were told she was demoted because she was not following Christ and was not seeing the owner’s vision.  She had been told to be “more Godly” and to “wash the feet” of others.  This employee was later fired.

Another employee was talked to about his personal life and told he should attend pre-marital counseling because he was living with his girlfriend.  When the employee chose not to attend pre-marital counseling, he was fired.

Because Title VII protects employees from discrimination based on religion, the EEOC sued.  It argued the employer violated Title VII in several ways.  First, the employer was trying to force conformity with its religious beliefs.  The employer denied a reasonable accommodation to employees who requested to be excused from the mandatory meetings to accommodate their own sincerely held religious beliefs. 

Second, the employees were subjected to harassment and a hostile work environment based on religious beliefs because the employer was trying to force the employees to conform to the employer’s religious beliefs.

And finally, the EEOC contended that the employer retaliated by firing employees who objected to their forced participation in religious activities.

These facts seem to demonstrate a very blatant case of religious discrimination. The owners seem to have forgotten that they cannot impose their own personal religious beliefs upon the company’s employees.  Employees may work without being forced to adopt the religious beliefs of their employer.

The EEOC sued in 2017. After close to four years and a detour through the owner’s bankruptcy, the EEOC finally got this judgment for $375,000 plus injunctive relief. The injunctive relief requires the employer to refrain (1) discriminating against employees, including but not limited to terminating an employee when the termination is based on religion, (2) subjecting an employee to a hostile work environment, and (3) refusing to reasonably accommodate an employee’s religious belief or practice. The employer must also train employees on Title VII and the obligation to prohibit religious based discrimination.

The parties entered into this agreed Final Judgment just a week before the case was set to go to trial.  The EEOC persevered over these four years and got justice for these employees.  Kudos to the EEOC for its hard work—which just might protect future employees from further religious discrimination.

But Your Husband Has A Job…

But Your Husband Has A Job…

For decades, companies paid female employees less because “her husband has a job” or because a male coworker “has a family to support.” Finally, a court called this pay practice what it is:  blatant discrimination.

 In Kellogg v. Ball State University d/b/a Indiana Academy for Science, Mathematics, and Humanities, Cheryl Kellogg was hired to be a teacher. The hiring director told her that she “didn’t need any more [starting salary] because he knew her husband worked.” Kellogg suffered the effects of this “outdated and improper approach” to her starting salary for the next 12 years.

When Kellogg finally sued for pay discrimination under Title VII and the Equal Pay Act, the Academy said that the pay differential was not discriminatory.  Instead, it claimed Kellogg’s lower pay was because of  (1) salary compression (paying newer hires more) and (2) difference in Kellogg and the male coworkers’ qualifications.

 In granting a motion for summary judgment, the district court ruled these two reasons were “undisputed” gender-neutral explanations for the salary disparity. 

 On appeal, Seventh Circuit said that the Academy “blatantly discriminated against Kellogg by telling her that, because her husband worked, she did not need more starting pay.” Such clear discrimination calls the sincerity of the Academy’s rationales into question.” It then reversed and remanded the case.

 This sharp rebuke was well deserved. 

 The district court erred in two significant ways.  First, it did not consider the statement that Kellogg did not need more pay because her husband worked.  It characterized that statement as a “stray remark.” The Seventh Circuit quickly dismissed that argument, noting that this statement “was not water cooler talk.” Instead, it was a straightforward explanation by the Academy’s director, who had control over setting salaries, as to why Kellogg did not need more money.  As it said, “few statements could more directly reveal the Academy’s motivations.”

 Second, the district court did not consider the discriminatory statement because it had been made outside of the statute of limitations period.  The Court of Appeals reminded that under the paycheck accrual role, as codified by the Lilly Ledbetter Fair Pay Act of 2009, a new cause of action for pay discrimination arises each time a plaintiff gets a paycheck resulting from an earlier discriminatory compensation practice—even one that occurred outside of the statute of limitations.

And, even apart from the paycheck accrual rule, it held Kellogg could rely on the statement’s to show that the Academy’s explanation for the pay disparity is pretextual because “time-barred acts [are allowed] as support for a timeline claim.”

Because the blatantly discriminatory statement that Kellogg did not need more pay because her husband worked put the Academy’s stated reasons for the pay different in dispute, the Seventh Circuit remanded this case.

That companies still make decisions about what to pay female employees based on a perception of whether a woman “needs” the money “because her husband works” or because her male coworker has a “family to support” is disheartening.

Let’s hope employers start to recognize this for what it is:  blatant discrimination.

Racial Slurs in the Workplace

Racial Slurs in the Workplace

Discrimination takes many forms.  One form is a hostile work environment created when an employee is subjected to racial slurs and a racially intimidating, hostile, or offensive working environment because of the employee’s protected characteristic –such as race, sex, or age.

To prove this discrimination, the employee must show the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

With racial slurs, the question arises:  how many racial slurs does it take to prove such a hostile work environment?

This question is particularly troubling when the employee has been called the N-word.  Some courts, recognizing the N-word as one of the most odious racial epithets,  have held that even one use of the N-word might be enough to create a hostile work environment. Other courts, including the Fifth Circuit Court of Appeals, disagree.  While the Fifth Circuit agrees that the N-word is a highly offensive term, under its precedent, one use of the N-word alone (or with other racial slurs) may not be enough for an employee to even create a fact issue as to whether the employee was subjected to a hostile work environment.

On January 15, 2021, Robert Collier asked the U.S. Supreme Court to answer the question of how many racial slurs it takes to create a hostile work environment.  Robert Collier v. Dallas County Hospital District d/b/a Parkland Hospital, Case No. 20-1004. A copy of the petition for certiorari is at:  https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20-1004.html.

Robert Collier worked at Parkland Hospital in Dallas as an operating room aide. During his employment, he was called a “boy” by white nurses. He had to use an elevator in which the N-word was etched into the wall of an elevator. Two swastikas were painted on the wall of a storage room.  Collier complained about the N-word etched in the elevator and the two swastikas to Human Resources and his department head, but no immediate action was taken.  Though the N-word was eventually scratched out in the elevator, Collier believed it was done by “some black person who was tired of seeing it” because it was not done professionally.  Parkland’s Operating Room Director knew of the swastikas and testified that he planned to cover them up “at some point,” but the two swastikas remained on the walls for nearly two years. 

Collier was terminated and sued, arguing he had been subjected to a hostile work environment while he worked at Parkland. He lost. 

The district court granted a motion for summary judgment.  It held that, while the N-word is racially offensive and universally condemned and that the swastikas could be interpreted as offensive, under guiding Fifth Circuit precedent, no reasonable jury could find Parkland’s conduct to be sufficiently hostile or abusive.  The Fifth Circuit affirmed this ruling.

Had Collier lived in a different part of the country where courts recognize that one use of a racial slur might create a hostile work environment, Collier might have won his lawsuit.

Now, Collier and his attorneys are asking the Supreme Court to answer these questions:

  • Whether an employee’s exposure to the N-word in the workplace is severe enough to justify sending his hostile work environment claim to a jury?
  • Whether and in what circumstances racial epithets in the workplace are “extremely serious” incidents that are sufficient to create a hostile work environment.

We do not know if the Supreme Court will take this case and answer these questions.  However, given the split of authority between the circuits, getting clear answers to these questions would benefit both companies and employees.

Stay tuned.