Sexual Harassment in Texas

last updated February 2012

Texas has enacted some sexual discrimination statutes that essentially mirror the language of Title VII. Section 21.051 of the Texas Labor Code makes it unlawful for an employer to fail or refuse to hire a woman, discriminate against her with regards to wages or terms of her employment, or limit, segregate, or otherwise interfere with her opportunities for employment because of her sex. Section 21.055makes it an offense to retaliate against anyone who files a complaint, testifies about, or otherwise opposes such a practice. Section 21.106 makes discrimination based on pregnancy equal to sex discrimination, and forces employers to treat pregnant women equal to other employees with an equal capacity to work. However, Section 21.119 excuses discriminatory employment practices where a given gender is a “bona fide occupational qualification” for a given job.
 
Federal Sexual Harassment Law
In the United States, sexual harassment is largely governed by federal law, especially Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (2009). Title VII makes it illegal to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment” because of her sex. The Act also defines discrimination based on pregnancy, childbirth, or related medical conditions as discrimination “on the basis of sex.”
 
The Equal Employment Opportunity Commission (EEOC) handles cases involving alleged violations of Title VII. A person must file a claim with the EEOC before she can file suit in a court of law. The EEOC also sets forth regulations that interpret Title VII and describe how the Commission will apply it.
 
The EEOC specifically defines sexual harassment as a form of sex discrimination under Title VII. Under EEOC’s regulation, 29 C.F.R. § 1604.11, unwanted physical touching, requests for sexual favors, and other unwanted sexual conduct constitutes “sexual harassment” when an employee’s submission to or rejection of such advances affects her employment status, or where those advances create an “intimidating, hostile, or offensive work environment” for the affected employee.
 
Under 29 C.F.R. § 1604.11(d), an employer can be held responsible for sexual harassment by one employee against another employee, if the employer knew or should have known about the harassment and could have taken steps to stop or correct it. Under § 1604.11(e), an employer can also be held responsible for sexual harassment by non-employees if the employer could have prevented or corrected it.
 
The EEOC’s regulations address not only “negative” sexual harassment, but also “positive” sexual harassment. Under § 1604.11(g), if an employer rewards an employee for submitting to sexual harassment, the employer’s other employees can claim that they have been sexually harassed. Therefore, if an equally-qualified employee is denied an opportunity to advance in favor of an employee who participated in sexual banter or performed sexual favors, the non-submitting employee has been “sexually harassed.” Similarly, if favoritism based on submission to sexual conduct is widespread, the EEOC says that non-participating employees can sue for sexual harassment under a hostile work environment theory.
 
However, the EEOC and the courts have stated that not all sexual favoritism violates Title VII. In particular, isolated instances of favoritism towards a supervisor’s romantic partner, while “unfair,” do not normally create a hostile working environment for other employees.
 
The United States Supreme Court has interpreted Title VII consistently with the EEOC’s current regulations: an employer can be held responsible when its employees create a hostile work environment. Employers can, however, avoid liability by demonstrating two things: first, that they took “reasonable care” to both prevent and address the hostile work environment, and second, that the employee who claims she suffered from the hostile work environment did not take advantage of those preventive or corrective measures. SeeBurlington IndustriesIncvEllerth, 524 U.S. 742 (1998); Faragher vCity of Boca Raton, 524 U.S. 775 (1998).
 
The Supreme Court rejected the idea that sexual harassment cannot arise from a “voluntary” sexual relationship in Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). The key question is not whether a woman voluntarily participates in the inappropriate conduct, but whether the conduct is “unwelcome.” The EEOC enforces this principle with 29 C.F.R. § 1604.11(a)(3), which states that conduct of a sexual nature that has either the purpose or the effect of creating a hostile work environment constitutes sexual harassment.
 
The Supreme Court held that a woman does not have to show tangible or economic damages from sexual harassment in order to sue an employer under Title VII. An employee can be compensated under Title VII based on a “hostile work environment” alone, without having to show, for instance, that she was psychologically or psychiatrically damaged or that her earnings actually suffered. SeeHarris v. Forklift Sys., Inc., 510 U.S. 17 (1993).
 
In 2008, the EEOC heard 13,867 sexual harassment claims and resolved 11,731 of them. In total, 84.1% of those claims were filed by women. Defendants in sexual harassment claims before the EEOC paid out $47.4 million to victims of sexual harassment in 2008. That figure does not include sexual harassment verdicts awarded by the courts.