PJC Business

E MPLOYMENT

PJC 107.21

Claims not subject to sections 21.141–.142. For a sexual harassment claim based on conduct occurring before September 1, 2021 (effective date of sections 21.141–.142), the following instruction should be used: “Sexual harassment” occurred if— 1. Paul Payne was subjected to unwelcome sexual advance[ s ] or demand[ s ]; and 2. submission to or refusal to submit to the unwelcome sexual advance[ s ] or demand[ s ] resulted in [ describe tangible employment action ]; and 3. the conduct was committed by an employee who had authority over hiring, advancement, dismissals, discipline, or other employ ment decisions affecting Paul Payne . [or] Entity vs. individual employer. It may be necessary to determine if, instead of an entity, the “employer” is an individual that “acts directly in the interests of an employer” in relation to the plaintiff as defined in section 21.141. If this is a relevant consideration, please refer to the comment below, “Personal liability.” Same-sex harassment. Title VII’s prohibition of sex discrimination encompasses “the entire spectrum of disparate treatment of men and women in employment,” including sexual harassment. Alamo Heights Independent School District v. Clark , 544 S.W.3d 755, 771 (Tex. 2018) (quoting Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 (1986)). Moreover, title VII’s protection against workplace discrimination on the basis of sex applies to harassment between members of different genders as well as the same gender. Clark , 544 S.W.3d at 771–72 (citing Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75, 79 (1998)). Sexual nature requirement imposed by section 21.142. Title VII prohibits two distinct types of sexual harassment: harassment that involves the conditioning of con crete employment benefits on acceptance or rejection of sexual favors or advance ments (so called quid pro quo sexual harassment) and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment (sex based hostile work environment sexual harassment). See Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 753–54 (1998); Meritor Savings Bank , 477 U.S. at 62. The Texas legislature modeled the TCHRA on title VII, and the Texas Supreme Court has expressly recognized that the TCHRA similarly prohibits both forms of sex ual harassment. See Hoffmann-La Roche, Inc. v. Zeltwanger , 144 S.W.3d 438, 445 (Tex. 2004) (noting the TCHRA is modeled after federal law with the purpose of exe-

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