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Practicing for 20+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights against sexual harassment and hostile work environments and all other forms of harassment including those based on race, color, national origin, sex, disability, age, religion and others.
What Non-Government, Private Employers are Prohibited from Harassing Employees and/or Subjecting them to a Hostile Work Environment?**
Most statutes only make it illegal to harass an employee and/or subject them to a hostile work environment when the employer has a certain number of employees during a given statutory time-period. Please see our Discrimination in General page for more details on the number of employees required depending on the particular type of discrimination claimed. However, knowledgeable and experienced attorneys may be able to work around such limitations by addressing the employee’s complaint through other causes of action and/or statutes.
What is Harassment and a Hostile Work Environment?** What Statutes Make Harassment and Hostile Work Environments Illegal?**
Discrimination is illegal when it is based on a “Protected Class” or “Protected Classification.” Protected classes, include but are not limited to: Sex/Gender (female or male), Race (any), National Origin (any), Color (any), Age (over 40), Disability (impairments meeting a certain statutory definition), Religion (all major religions and other sincere religious beliefs), and Pregnancy (as well as being a person who has given birth and any related ailments), and any other class protected by federal, state or local statute or common law. A nonexclusive list of some of the other types of discrimination involving Protected Classes, the statutes prohibiting such discrimination and a description of each can be found on our Discrimination in General page. There are two forms of illegal discrimination based on Protected Classes:
- The first is where an employer treats an employee differently from other employees outside of the employee’s Protected Class and the employee is subject to an “Adverse Employment Action.” This is called “Differential Treatment” or “Disparate Treatment,” and is discussed in more detail on our Discrimination in General page.
- The second is where an employer subjects an employee to “Harassment or a Hostile Work Environment” because of their Protected Class and the employer’s conduct is sufficiently “severe or pervasive.” Harassment and Hostile Work Environments are discussed below.
The same statute which makes discrimination illegal based on a particular Protected Class applies to both Differential or Disparate Treatment claims and Harassment or a Hostile Work Environment claims. For instance, the statute which prohibits discrimination based on the employee’s Protected Class of Age, namely, the ADEA, makes discrimination based both on Differential or Disparate Treatment and Harassment or a Hostile Work Environment illegal. Further, the minimum number of employees that an employer must have before a they can be held liability for discrimination is also determined by the statutes which prohibit discrimination based on the particular protected class in question. Please see our Discrimination in General page for more details on statutory requirements.
What Conduct May Not be Unlawful or Illegal Harassment or a Hostile Work Environment?**
The law does not require that an employer be nice (as opposed to subjecting a person to a hostile work environment or harassment because of their Protected Class) or fair (as opposed to not treating a person of a Protected Class and persons outside that class equally) to an employee. By itself, it is not discrimination for an employer, manager, supervisor or coworker to be mean, unfriendly, insensitive, rude, have unrealistic or impossible expectations, not give proper direction, not give credit for or criticize an employee’s work, give bad or inaccurate reviews, not pay what an employee believes they are worth, discipline or terminate an employee for reasons which are inaccurate or even to be abusive, if such conduct is not motivated by discrimination because of an employee’s Protected Classifications, or other illegal factors. Such things, when unrelated to discrimination based on an employee’s protected class (or other illegal factors), may be considered “ordinary tribulations of the work place.” If a manager is extremely abusive to all his subordinate employees equally, it may not be illegal discrimination, harassment or a hostile work environment. If a manager has a personal gripe against one employee that is unrelated to that employee’s Protected Classifications, it may not be illegal discrimination, harassment or a hostile work environment. For instance, if a manager suspected that an employee dinged her car in the company parking lot, and treated the employee poorly or fired him because of it, even the employee did not do it, it may not be illegal discrimination, harassment or a hostile work environment.
However, if an employer, manager, supervisor or coworker subject an employee to Harassment and a Hostile Work Environment because of their Protected Classifications, and the harassment is sufficiently “severe or pervasive,” the employee may also have a claim of discrimination. When an employee establishes discrimination based their Protected Class and which Harassment or a Hostile Work Environment, the acts described in the preceding paragraph as “ordinary tribulations of the work place” may be used as evidence to support the employee’s claim of discrimination. Such behavior may also be evidence of other illegal conduct. For a non-exclusive list of other illegal employment related conduct, please review the other employment related claims listed on our Homepage.
How May an Employee Prove that their Employer Subjected them to a Hostile Work Environment because of their Protected Class?**
To give rise to a claim of Harassment or a Hostile Work Environment against and employer, including but not limited to Sexual Harassment, the employee must prove that: (1) they are a member of a Protected Class; (2) they were subjected to unwelcome harassment; (3) the harassment was based on his or her Protected Class; (4) the harassment affected a “term, condition, or privilege” of their employment; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.
For sexual harassment to be actionable, it must be “sufficiently severe or pervasive” to alter the conditions of an employee’s employment and create an abusive working environment. In determining whether an environment is hostile or abusive, Courts look at the totality of the circumstances including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Courts have also considered whether the complained of conduct undermines the plaintiff’s workplace competence. To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. Simple teasing, offhand comments, minor, isolated incidents that are not very serious, without more, may not constitute Harassment or a Hostile Work Environment under this standard, in some cases.
What Acts Constitute Sexual Harassment?**
Federal and state law defines sexual harassment as unwanted sexual advances, requests for sexual favors, or visual, verbal, or physical conduct of a sexual nature. There are two types of Sexual Harassment: Quid Pro Quo and Hostile Work Environment:
- Quid Pro Quo.** Quid Pro Quo refers to situations where employment decisions such as hiring, firing, or promotions are contingent upon the employee providing sexual favors. Examples of quid pro quo sexual harassment are when a supervisor threatens to fire an employee who does not submit to sexual advances or where a supervisor promises to promote an employee in exchange for sexual favors.
- Hostile Work Environment.** As discussed above, a Hostile Work Environment occurs when an employee is subjected to sexual harassment that is “sufficiently severe or pervasive” to alter the conditions of their employment and create an abusive working environment.
What Are Examples of Conduct which May Constitute Sexual Harassment or a Hostile Work Environment?**
The following is a non-exclusive list of conduct which may constitute evidence of Sexual Harassment, which if “sufficiently server or pervasive” may give rise to a claim of sex discrimination based on Sexual Harassment:
- Unwanted sexual advances;
- Offering employment benefits in exchange for sexual favors;
- Making or threatening reprisals after a negative response to sexual advances;
- Visual conduct such as leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters;
- Verbal conduct such as making or using derogatory comments, epithets, slurs, sexually explicit jokes, or comments about any employee’s body or dress;
- Verbal abuse of a sexual nature, graphic verbal commentary about an individual’s body, sexually degrading words to describe an individual, or suggestive or obscene letters, notes, or invitations;
- Physical conduct such as touching, assault, or impeding and/or blocking movements; and
- Retaliation for reporting harassment or threatening to report harassment.
Sexual harassment on the job is unlawful whether it involves co-worker harassment, harassment by a manager, or harassment by persons of the same or opposite sex.
What are the Other Types of Harassment or Hostile Work Environments?**
The law also prohibits harassment and subjecting an employee to a hostile work environment that is “sufficiently severe or pervasive” to alter the conditions of their employment and create an abusive working environment, as discussed in more detail above, because of the employee’s race, religion, color, sex/gender, pregnancy, age, national origin, disability, and other Protected Classes.
What Are Examples of Conduct which May Constitute Other Types of Harassment or Hostile Work Environments?**
The following is a non-exclusive list of conduct which may constitute evidence of Harassment or a Hostile Work Environment, which if “sufficiently server or pervasive” may give rise to a claim of discrimination based on Harassment or a Hostile Work environment:
- Verbal conduct such as threats, epithets, derogatory comments, or slurs;
- Visual conduct such as derogatory posters, photographs, cartoons, drawings, or gestures;
- Physical conduct such as assault, unwanted touching, or blocking normal movement; and
- Retaliation for reporting harassment or threatening to report harassment.
When is an Employer Liable for Sexual and Other Types of Harassment by one of its Owners or Officers, or for a Hostile Work Environment Created by one of its Owners or Officers?**
High Ranking Official (Proxy or Alter Ego) Harassment.** An employer is liable for unlawful harassment and a hostile work environment whenever the harasser is of a sufficiently high rank to fall within that class of persons who may be treated as the organization’s “proxy” or “alter ego” (a high ranking authorized representative who is considered to be the personal manifestation of the corporate employer, such that the person and the corporation are essentially considered to be the same), depending on the circumstances, this may include a president, chief executive officer (CEO), owner, partner or other corporate officers. In such circumstances, the official’s unlawful harassment is imputed automatically to the employer, and the “Affirmative Defense” to the employer’s liability, discussed below, is not available.
When is an Employer Liable for Sexual and Other Types of Harassment by one of its Supervisors, or for a Hostile Work Environment Created by one of its Supervisors?**
Supervisor (or Successively Higher) Harassment.** An employer may also be subject to liability to an employee for harassment and a hostile work environment created by a supervisor with immediate or successively higher authority over the employee which results in a “Tangible Employment Action” to the employee. Tangible Employment Action usually results in direct economic harm, but does not necessarily have to. The following is a non-exclusive list of acts which might constitute a “tangible employment action” depending on the circumstances:
- Refusing to hire
- Demotion or reassignment with materially different or diminished responsibilities
- Failure to Promote
- Significant decrease in benefits
- Transfer or refusing a transfer
- Reduction in hours
- Reduction in pay, salary or wages
When a supervisor’s harassment or hostile work environment does not result in “tangible employment action,” the employer may have an Affirmative Defense to such liability as discussed below.
When is an Employer Liable for Sexual and Other Types of Harassment by a Coworker, or for a Hostile Work Environment Created by a Coworker?**
Coworker Harassment.** An employer may be liable if a coworker harasses an employee or subjects the employee to a hostile work environment. However, depending on the circumstances, the employer may have an Affirmative Defense to such liability as discussed below.
What are the Defenses to a Claim of Harassment or a Hostile Work Environment?**
Generally.** An employer may have several defenses to a claim of Harassment and a Hostile work environment. Some defenses are factually based, such as when an employer has proof that an employee’s description of the facts is not true. This may also include evidence of the true motivations for the employee’s complaint of discrimination. For example, an employer may argue that the employee knew his performance was unsatisfactory, and made a complaint of discrimination as a defensive maneuver to try to avoid discipline or termination. Other defenses include the failure to “Exhaust Administrative Remedies” and the “Affirmative Defense” (discussed below). Sometimes, the issue of whether an employee belongs in a Protected Classification can be challenged, such as whether an employee has a disability within the meaning of the ADA. Other times, the employer may challenge whether the conduct or the resulting harm was sufficient to give rise to a statutory violation. Many other defenses may be available depending on the circumstances.
Employer’s “Affirmative Defense” to Harassment and Hostile Work Environment Claims.** When no tangible employment action is taken, an employer may raise an affirmative defense to liability for a supervisor’s or a coworker’s harassment or a supervisor’s or a coworker’s creation of hostile work environment by showing: (a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
- Employer’s Reasonable Care.** An employer might not be considered to have exercised reasonable care to prevent and/or promptly correct harassment and a hostile work environment if: (1) the employer failed establish, disseminate, and enforce an anti-harassment policy and complaint procedure; (2) the employer failed to take prompt, effective remedial action to correct the harassment or hostile work environment of which it is aware, or should have been aware because it was so open and pervasive, regardless of whether a complaint has been filed; and (3) the employer failed to take prompt, effective remedial action to correct harassment or a hostile work environment after receiving an employee’s complaint.
- Employee’s Failure Use of Remedies.** A victim of harassment and a hostile work environment who has not suffered a “tangible employment act,” may have a duty to avail themselves of their employer’s harassment complaint procedure, if any, and complain so that the employer may have an opportunity to remedy the harassment or hostile work environment. Part of this duty may require the employee to cooperate in the employer’s investigation of their complaint. However, in some circumstances an employee may be relieved of their duty to complain to the employer if: (1) there was no anti-harassment policy or complaint procedure; (2) the harassment complained of was so open and pervasive that the employer should have known of it, and thus was considered to have constructive notice of it; (3) it would be unreasonable to complain because there is strong evidence that using the complaint mechanism would result in retaliation, there were obstacles to making the complaint, and/or the complaint mechanism would not be effective, such as when the complaint procedure required the employee to complaint to the harasser.
How, to Whom and When Should an Employee Complain about Harassment and a Hostile Work Environment?**
- Employer’s Internal Complaint Process.** Depending on the circumstances, an employee of a private employer may be required to complain to the employer using the employer’s internal complaint procedures in order to be successful against their employer in claims of harassment or a hostile work environment under Title VII (Race, National Origin, Color, Sex, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy) . The failure to do so, may give rise to an affirmative defense (discussed above) against an employee’s claim of discrimination, which may be fatal to all or part an employee’s lawsuit.
- Filing a Charge of Discrimination with the EEOC (“Exhausting Administrative Remedies”).** Timely filing a Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Human Rights Division (“TWC”), is a prerequisite (an act which is required to be performed before the lawsuit is filed) to an employee bringing a lawsuit for discrimination based on harassment and a hostile work environment under certain statutes, including, but not limited to: Title VII (Race, National Origin, Color, Sex, Religion, etc.), the ADA (Disability), the ADEA (Age) and the PDA (Pregnancy). Properly filing a Charge of Discrimination and raising all of an employee’s claims of discrimination and other unlawful conduct is known as “Exhaustion of (or Exhausting) Administrative Remedies.” Discrimination claims brought under 42 U.S.C. §1981, as well as certain other statutes, are not required to be first filed with the EEOC, but are subject to the Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
When Does a Charge Of Discrimination Have to Be Filed with the Equal Employment Opportunity Commission (EEOC)? When does a Charge of Discrimination Have to be Filed with the Texas Work Force Commission (TWC)?
In order to file a lawsuit in State Court, the Charge of Discrimination must be filed with the Texas Workforce Commission, Human Rights Division, within 180 days from the date of the alleged retaliation. In order to file a lawsuit in Federal Court, the Charge of Discrimination must be filed with the local field office of the EEOC, within 180 days from the date of the alleged discrimination. The Charge of Discrimination may be jointly filed with the EEOC and TWC, however, in order to bring a lawsuit in State Court, the Charge of Discrimination must be jointly filed with the EEOC and TWC within 180 days of the date of the alleged discrimination. A lawsuit may still be filed in Federal Court, but not State Court, if the Charge of Discrimination was jointly filed between 180 and 300 days of the act of discrimination. Failing to timely and properly prepare, file or raise certain allegations in the Charge of Discrimination to either the EEOC or the TWC, may result in an employee being barred from bringing all or part of their claims in a lawsuit. This is known as a failure to Exhaust Administrative Remedies. For this reason, employees should engage an attorney to assist in the preparation and filing of a Charge of Discrimination.
Practically speaking, once an employee makes a complaint of discrimination or files a Charge of Discrimination, an employer should be extremely careful in how it reacts, and should immediately consult an attorney. Taking the wrong action could turn a beatable claim of discrimination into a very difficult claim of retaliation (see below), which is significantly easier for an employee to prove. While an employee must prove that he has actually suffered discrimination to support a claim of discrimination, an employee only has to have had a “good faith reasonable belief” that he had suffered from discrimination to support a claim of retaliation (discussed below and on our Retaliation Page) for making a complaint of discrimination. The latter is much easier to prove.
What does the Equal Employment Opportunity Commission (“EEOC”) do? What does the Texas Workforce Commission (“TWC”) Do?**
After receiving a Charge of Discrimination, the EEOC or the TWC will usually investigate it. The employer will be asked to submit a Position Statement and explain why they are not guilty of discrimination or other illegal conduct. Both parties may be asked questions and to submit evidence in support of their position. The parties may be asked if they would like to mediate (discuss a settlement) the dispute. In most cases, if the case is not settled, the EEOC and TWC will find that they are unable to conclude that discrimination, or other illegal conduct has occurred, and issue a “Right to Sue” letter. In rare cases, the EEOC or TWC will find that discrimination or other illegal conduct has occurred, and still issue a “Right to Sue” letter. In either of these cases, the employee will have 90 days to file a lawsuit in the appropriate Court. In even rarer cases, the EEOC or TWC will sue on the employee’s behalf.
Practically speaking, the EEOC and TWC process, as well as the process by which the employee applies for unemployment insurance benefits, are where the parties will begin to create a record of evidence to be used in support of or against their position at trial. Care should be taken to make sure statements and evidence are presented consistently, otherwise a party’s position may be severely weakened at trial.
Claims made under statutes or other common law causes of action that do not require that a Charge of Discrimination be filed with the EEOC or TWC all contain a “Statute of Limitations.” A Statute of Limitations is a deadline by which a lawsuit must be filed or, otherwise, the right to bring a lawsuit may be forever forfeited. Accordingly, an attorney should always be consulted immediately without delay.
What Damages Can an Employee Get from a Private Employer Because of Discrimination based on Harassment or a Hostile Work Environment? How Much Money can an Employee Get from an Employer Because of Discrimination based on Harassment or a Hostile Work Environment?**
The following types of damages may be available to an employee who wins a discrimination case based on disparate treatment, harassment or hostile work environment depending on the facts of the case and specific statute that the employee sues under:
- Back Pay and Front Pay.** Back Pay and Front Pay compensate an employee for wages lost because of a discriminatory act. Back pay compensates the employee for wages lost up to the time of trial. Front pay compensates and employee for wages which are anticipated to be lost after trial.
- Lost Benefits.** An employee may be able to recover the value of benefits that he or she would have received if not for the employer’s discriminatory conduct.
- Compensatory Damages.** Compensatory damages are generally intangible types of damages such as emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-pecuniary damages (see below). They are generally more difficult to prove and/or to determine the value of because they are intangible. An employee must establish a legally sufficient connection between the discrimination and the damages claimed. Sometimes, a medical expert may be necessary. Past and future compensatory damages may be subject to statutory caps (a maximum) on the amount that can be recovered.
- Pecuniary Damages.** Pecuniary Damages are damages which relate to economic losses, such as medical expenses and other quantifiable out-of-pocket expenses. These are usually easier to determine the value of because they can be calculated by looking at the employee’s actual expenditures. An employee must establish a legally sufficient connection between the discrimination and the damages claimed, as well as the reasonableness of the amount spent. Sometimes, an expert may also be necessary. Past pecuniary damages are not subject to caps, however, future pecuniary damages may be.
- Attorneys’ Fees & Costs.** An employer who is found to have discriminated against an employee may be ordered to pay the amount of the employee’s attorney’s fees.
- Punitive Damages.** Punitive damages may be awarded if an employer’s discrimination was committed with malice or with reckless indifference to the statutory rights the employee.
- Other Remedies.** Depending on the facts and the statute that the employer is sued under, an employee may be entitled to other remedies as well.
Does an Employee have a Duty to Mitigate (Avoid and/or Minimize) Damages?**
Yes. An employee has a duty to mitigate and/or minimize their damages. This can include searching for and not refusing other work, and/or following through with therapy or treatment to relieve mental anguish, as well as other actions depending upon the circumstances.
Is an Employer Prohibited from Retaliating Against an Employee for Making a Complaint of Discrimination, Harassment or a Hostile Work Environment? What Constitutes Retaliation?**
An employer is prohibited from unlawfully retaliating against an employee. Unlawful retaliation occurs when an employer takes a “Materially Adverse Action” against an employee for engaging in “Protected Activity” which includes, but is not limited to, making a complaint of discrimination or filing a Charge of Discrimination. A more detailed discussion of retaliation can be found on our Retaliation in General page.
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