PJC Business

PJC 107.21

E MPLOYMENT

cuting the policies set forth in title VII); Waffle House, Inc. v. Williams , 313 S.W.3d 796, 804 (Tex. 2010) (sexual harassment is a recognized cause of action under TCHRA; there are two types of sexual harassment: quid pro quo and hostile work environment). Prior to the effective date of sections 21.141 and 21.142, to successfully establish a sex-based hostile work environment sexual harassment claim, a plaintiff was required to demonstrate that the plaintiff (1) was subjected to unwelcome sexual harassment, (2) was harassed because of the plaintiff’s sex, (3) the harassment was so severe or pervasive as to alter the conditions of employment and create a hostile work environ ment, and (4) some basis for holding the employer liable. Alamo Heights , 544 S.W.3d at 771 (finding no liability on the part of the employer for alleged pervasive sexual harassment involving “sexual comments” because the alleged conduct was not because of the employee’s gender). In its current form, section 21.142, promulgated after the Texas Supreme Court’s decision in Alamo Heights , appears to segregate claims for sexual harassment from (1) general discrimination claims under section 21.051 and (2) sex discrimination claims under section 21.106, by consolidating both types of sexual harassment (as defined in section 21.141(2)) into a separate unlawful employment practice claim. Specifically, section 21.141(2)(A)–(C) identifies the basis for quid pro quo sexual harassment claims, while section 21.141(2)(D) identifies the basis for sex-based hos tile work environment sexual harassment claims. However, the plain language of the new statute requires that the complained of conduct must be of a “sexual nature” as that phrase modifies the catchall phrase “any other verbal or physical conduct.” See Tex. Lab. Code § 21.141(2). The phrase “sexual nature” is not defined in the statute. This construct creates a question of interpretation that the Committee cannot recon cile given that the Equal Employment Opportunity Commission has made clear that “[sexual] [h]arassment 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.” See United States Equal Employment Opportunity Commission, Sexual Harassment , www.eeoc.gov/ sexual-harassment . For claims brought under current section 21.142, it is unclear whether a plaintiff may successfully prosecute a sex-based hostile work environment sexual harassment claim under this statute with evidence that the underlying alleged verbal or physical conduct was because of sex, but without evidence that it was of a “sexual nature.” Alamo Heights , 544 S.W.3d at 763 (“An employer’s liability is determined by the stat ute the Legislature enacted, not well-meaning judges. The text is the law, and it is the text that must be observed.”) (internal citation omitted). If the inclusion of the “sexual nature” qualifier indeed distinguishes sexual harassment cases from cases of harass ment based on sex but lacking a sexual nature, then the latter are not actionable under

340