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sexual harassment

Harassment and Discrimination In The Workplace

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e), the Age Discrimination in Employment Act of 1967 (ADEA) (29 U.S.C. §621), and the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §12101).

In addition to these federal laws, states also have laws against discrimination and harassment in employment. These state laws are generally located in a state’s statutes—often in the labor code or employment-related statutes.

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including the following:

• The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.

• The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.

• Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Prevention is the best tool to eliminate harassment in the workplace. Employers are encouraged to take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.

Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.

Employer Liability for Harassment

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: (1) it reasonably tried to prevent and promptly correct the harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

Sexual Discrimination and Harassment In The Workplace

Sex-Based Discrimination

Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person's sex.

Discrimination against an individual because of gender identity, including transgender status, or because of sexual orientation is discrimination because of sex in violation of Title VII.

For the regulations related to sex discrimination and harassment, see the Code of Federal Regulations, beginning with 29 CFR 1604.1.

Sex Discrimination and Work Situations

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Sex Discrimination and Employment Policies or Practices

An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.

Sexual Harassment

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

In Texas, harassment and discrimination in the workplace are prohibited under both federal and state laws. Federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act set the groundwork for what constitutes unlawful harassment and discrimination, including sex-based discrimination and sexual harassment. These laws protect against unfavorable treatment due to race, color, religion, sex, national origin, age, disability, or genetic information. Texas follows these federal guidelines and also has state-specific statutes that address employment discrimination, primarily found in the Texas Labor Code (Chapters 21 and 61). The Texas Workforce Commission is the state agency responsible for enforcing these laws. Harassment becomes illegal when it creates a hostile work environment or when enduring it becomes a condition of employment. Employers in Texas are liable for harassment by supervisors that results in negative employment actions and may be liable for non-supervisors if they knew or should have known about the harassment and failed to take action. Employers are encouraged to prevent harassment with clear policies, training, and effective complaint processes. Employees should report harassment early to prevent escalation. The specifics of each case determine the legality of the conduct, with the EEOC investigating allegations on a case-by-case basis.


Texas Statutes & Rules

Texas Labor Code, Chapter 21 - Employment Discrimination
This chapter of the Texas Labor Code is relevant as it outlines the state's laws regarding employment discrimination, including harassment.

The Texas Labor Code, Chapter 21, prohibits discrimination in employment on the basis of race, color, disability, religion, sex, national origin, or age. It applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, and the state government. The chapter defines unlawful employment practices and provides guidelines for the filing of discrimination complaints with the Texas Workforce Commission Civil Rights Division. It also outlines the legal remedies and enforcement mechanisms available to individuals who have experienced discrimination.

Texas Penal Code, Section 42.07 - Harassment
This section of the Texas Penal Code defines the criminal offense of harassment, which can include behaviors that may occur in the workplace.

Under Section 42.07 of the Texas Penal Code, a person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, they initiate communication and in the course of the communication make a comment, request, suggestion, or proposal that is obscene; threaten, in a manner reasonably likely to alarm the person receiving the threat, bodily injury or commit an offense; convey a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; cause the telephone of another to ring repeatedly or make repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; make a telephone call and intentionally fail to hang up or disengage the connection; or send repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Texas Government Code, Chapter 411, Subchapter I - Sexual Harassment
This subchapter of the Texas Government Code specifically addresses sexual harassment and outlines the state's policy against such conduct in the workplace.

Chapter 411, Subchapter I of the Texas Government Code states that sexual harassment is a form of sex discrimination and is illegal. It defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. The subchapter also provides for the development of training programs to educate employees about the prevention of sexual harassment.

Texas Labor Code, Section 21.051 - Discrimination by Labor Unions
This section of the Texas Labor Code addresses discrimination by labor organizations, which can include harassment.

Section 21.051 of the Texas Labor Code makes it unlawful for a labor union to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of race, color, disability, religion, sex, national origin, or age. It also prohibits labor unions from limiting, segregating, or classifying its membership, or applicants for membership, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's race, color, disability, religion, sex, national origin, or age.

Federal Statutes & Rules

Title VII of the Civil Rights Act of 1964
Title VII is a foundational statute that prohibits employment discrimination based on race, color, religion, sex, and national origin.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. This includes protection against harassment, which is a form of discrimination that can create a hostile work environment. Harassment under Title VII includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Age Discrimination in Employment Act of 1967 (ADEA)
The ADEA protects employees and job applicants who are 40 years of age or older from discrimination based on age in various aspects of employment.

The Age Discrimination in Employment Act of 1967 prohibits employment discrimination against persons 40 years of age or older. The ADEA applies to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of their age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassment can include offensive or derogatory remarks about a person's age. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.

Americans with Disabilities Act of 1990 (ADA)
The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public.

The Americans with Disabilities Act of 1990 prohibits discrimination against individuals with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA also applies to the United States Congress. Employers are required to provide reasonable accommodations to employees with disabilities, unless doing so would cause significant difficulty or expense for the employer. Harassment against individuals with disabilities is a form of discrimination that can create a hostile work environment, and it is prohibited under the ADA. This includes offensive remarks about a person's disability. Like other forms of harassment, it is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.

Equal Employment Opportunity Commission's (EEOC) Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors
The EEOC's guidance provides clarity on when an employer may be held liable for harassment by supervisors.

The EEOC's Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors clarifies that employers are liable for harassment by supervisors that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that it reasonably tried to prevent and promptly correct the harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided.