PJC Business 2024

E MPLOYMENT

PJC 107.23

environment based on age); Union Pacific Railroad Co. v. Loa , 153 S.W.3d 162, 169 (Tex. App.—El Paso 2004, no pet.); Dillard Department Stores v. Gonzales , 72 S.W.3d 398, 407 (Tex. App.—El Paso 2002, pet. denied); and Wal-Mart Stores, Inc. v. Itz , 21 S.W.3d 456, 472–73 (Tex. App.—Austin 2000, pet. denied). Same-sex sexual harassment. For cases involving allegations of same-sex sex ual harassment, see the Comment to PJC 107.21. Affirmative defense. An employer is entitled to submission of the affirmative defense of reasonable care under PJC 107.24 if the supervisor’s harassment does not culminate in a tangible employment action. Ellerth , 524 U.S. at 765; Faragher , 524 U.S. at 807. Harassment consisting of or culminating in a tangible employment action. Harassment by a supervisor may consist of or culminate in a tangible employment action. “A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with sig nificantly different responsibilities, or a decision causing a significant change in bene fits. A tangible employment action in most cases inflicts direct economic harm.” Stelly v. San Antonio Aerospace, L.P. , No. 04-11-00478, 2012 WL 1940661, at *2 (Tex. App.—San Antonio May 30, 2012, no pet.) (quoting Ellerth , 524 U.S. at 761–62) (internal citation omitted). If there has been a tangible employment action, its occur rence is usually documented and impossible to dispute (constructive discharge being the exception), but it may be necessary to submit a question to the jury about whether the tangible action was an incident of harassment motivated by discriminatory animus or was taken entirely because of a legitimate, nondiscriminatory reason. For that topic, see PJC 107.6. If the jury finds the former, “then the employer is strictly liable.” Smith v. Carter BloodCare , No. 02-12-00523-CV, 2014 WL 1257273, at *4 (Tex. App.— Fort Worth Mar. 27, 2014, no pet.) (relying on Vance v. Ball State University , 570 U.S. 421, 429 (2013)). Constructive discharge. “A constructive discharge qualifies as an adverse per sonnel action under the TCHRA [i.e., a tangible employment action], but requires proof that the employer made the working conditions so intolerable that a reasonable person would feel compelled to resign.” Waffle House, Inc. v. Williams , 313 S.W.3d 796, 805 (Tex. 2010) (citing Pennsylvania State Police v. Suders , 542 U.S. 129, 141 (2004); Green v. Industrial Specialty Contractors, Inc. , 1 S.W.3d 126, 134 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). In other words, if the employer’s official acts are motivated by discrimination and create the intolerable conditions, then the constructive discharge is a tangible employment action for which the employer is strictly liable. See Stelly , 2012 WL 1940661, at *3 (“With regard to the alleged con structive discharge, we note that absent an official act underlying the constructive dis charge, constructive discharge does not rise to the level of a tangible employment action that would preclude the Company from asserting the Faragher/Ellerth affirma tive defense.”) (citing Suders , 542 U.S. at 141, 148–49).

347