Sexual Discrimination and Harassment

Working a 9 to 5 job in San Antonio is tough. It’s even tougher when having to go to work and being subjected to unwanted sexual advances or comments. It can be humiliating and frustrating. Fortunately, federal law and Texas law provides protections for those subjected to sexual harassment. Texas law substantially mirrors federal law, but both provide protection and remedies in the form of money damages that you can collect against your employer. There are basically two types of sexual harassment: Hostile work environment sexual harassment and quid pro quo sexual harassment.

Hostile Work Environment Sexual Harassment. This type of harassment is exactly what it sounds like. This type of harassment occurs when your boss, or fellow employee(s), subjects you to constant remarks about your anatomy or make suggestive comments about sexual acts, engages in unwanted physical touching requests for sexual favors, and other unwanted sexual conduct. For a more detailed examination of this topic see 29 CFR 1604.11. Generally, the harassment must be "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment” See Harris v. Forklift Systems, Inc. If you feel you cannot go into work because you must continuously face a severe sexual harassment or you have resigned because of it then your workplace is “sufficiently severe.” 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. This means that if you have pointed out the problem to your employer, the employer can be held responsible not only for your co-employee’s conduct but also the conduct of a third-party vendor or client.

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.

Quid Pro Quo Sexual Harassment. This type of harassment usually involves a demand for sexual favors in exchange for a promotion (i.e. a change in job title or a raise). Oftentimes if the victim does not cooperate he or she will suffer a termination, demotion or a decrease in scheduled shifts (less income). An example of this type of sexual harassment is where a female employee’s boss offers to give her a raise or a promotion if she has sex with him . Further, a violation of law occurs if she refuses to have sex with him, or grant him sexual favors, and she is fired, terminated, or receives a pay cut. You can also be the victim of this kind of sexual harassment if you are more qualified than the propositioned employee and fail to receive the pay raise or promotion because the less qualified candidate received the promotion because she or he granted sexual favors to the boss.

Liability of Employer. In the quid pro quo scenario, an employer can escape liability if it can prove that it took reasonable steps to prevent this type of harassment and that the employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer to avoid the harm. The important thing to know here is that if you are or have been subjected to quid pro quo sexual harassment from a supervisor, you should immediately report it to your human resources department or the supervisor of your supervisor. It is important to do this in writing and to be able to prove that you provided this writing.

Evidentiary Considerations. As in most employment law claims, these cases are “she said, he said” type cases and therefore documenting everything that occurs is very important. You are encouraged to keep a diary or journal of what is going on at work as well as keeping copies of all correspondence to and from your employer (written complaints to the HR department, emails to and from your supervisor and/or coworkers, and any other relevant documents). If you are in San Antonio, or within the state of Texas, you can also make audio recordings of conversations without the other parties’ consent or knowledge as long as you are in the same room as the recording device. See this resource for the legalities of audio recordings in Texas.

Remedies May Include Compensatory & Punitive Damages. Compensatory and punitive damages may be awarded in cases involving intentional discrimination based on a person's race, color, national origin, sex (including pregnancy, gender identity, and sexual orientation), religion, disability, or genetic information.

Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination (such as costs associated with a job search or medical expenses) and compensate them for any emotional harm suffered (such as mental anguish, inconvenience, or loss of enjoyment of life).

Punitive damages may be awarded to punish an employer who has committed an especially malicious or reckless act of discrimination.

Limits on Compensatory & Punitive Damages. There are limits on the amount of compensatory and punitive damages a person can recover. These limits vary depending on the size of the employer:

• For employers with 15-100 employees, the limit is $50,000.
• For employers with 101-200 employees, the limit is $100,000.
• For employers with 201-500 employees, the limit is $200,000.
• For employers with more than 500 employees, the limit is $300,000.

Age or Sex Discrimination & Liquidated Damages. In cases involving intentional age discrimination, or in cases involving intentional sex-based wage discrimination under the Equal Pay Act, victims cannot recover either compensatory or punitive damages, but may be entitled to "liquidated damages."

Liquidated damages may be awarded to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded the victim.

Statute of Limitations. To preserve your claim under state law, you must file with the TWC-CRD (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. If you are a governmental employee with a discrimination claim, you should be sure to file a timely claim under Texas state law, because the state may have immunity from certain kinds of claims under Title VII of the Civil Rights Act.

If you or a loved one has been subject to employment discrimination, please contact the attorneys of Carabin Shaw in San Antonio today. We offer free initial consultations and work on a contingent fee basis, which means that there is never a fee unless we successfully resolve your case. Our experienced San Antonio employment lawyers will know how to deal with the employment discrimination so you don’t have to.

For immediate assistance and to set up a free consultation with one of our experienced lawyers, call us toll-free at 800-862-1260.

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