PJC Business

E MPLOYMENT

PJC 107.21

section 21.142, but they are actionable under applicable law. In such cases, PJC 107.22 and 107.23 may be appropriate. At least under federal law, it is clear that “[m]any types of nonsexual harassing activities can be ‘because of’ gender: epithets, slurs, or negative stereotyping; threat ening, intimidating, or hostile acts; and written or graphic material that denigrates or shows hostility or aversion toward an individual or group.” Alamo Heights , 544 S.W.3d at 814 (Boyd, J., dissenting) (citing Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 811 (11th Cir. 2010); Mota v. University of Texas Houston Health Sci ence Center , 261 F.3d 512, 524 (5th Cir. 2001)); see also Ziskie v. Mineta , 547 F.3d 220, 226 (4th Cir. 2008); Boumehdi v. Plastag Holdings, LLC , 489 F.3d 781, 788 (7th Cir. 2007); Williams v. General Motors Corp. , 187 F.3d 553, 565 (6th Cir. 1999) . Tangible and intangible actions; supervisory and non-supervisory actions. Section 21.141 codifies—and subjects to the same liability standard expressed in section 21.142—all forms of sexual (and only sexual) harassment. This is a departure from the uncodified principles of federal law concerning sexual harass ment and harassment on the basis of other protected characteristics and/or activity. Under federal law, the rules of liability differ depending on whether the harasser was a supervisor or not and on whether the harassment’s effects were tangible or intangible. The U.S. Supreme Court in Ellerth , 524 U.S. at 761, defined “tangible employment action” as “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision caus ing a significant change in benefits.” See also Wal-Mart Stores, Inc. v. Itz , 21 S.W.3d 456, 475 (Tex. App.—Austin 2000, pet. denied). Employers are vicariously liable for harassment with a tangible effect. For harassment by a supervisor with only an intangi ble effect, employers are also vicariously liable but can assert the affirmative defense outlined in Ellerth and its companion case, Faragher v. City of Boca Raton , 524 U.S. 775 (1998). For harassment by a nonsupervisor with only an intangible effect, the employer’s liability is usually premised on negligence. The Texas codification elimi nates the supervisor/nonsupervisor and tangible/intangible distinctions and grounds all liability only on the employer’s negligence: its failure, despite having actual or con structive knowledge of sexual harassment, “to take immediate and appropriate correc tive action.” See Tex. Lab. Code § 21.141. The codification apparently eliminates the Faragher/Ellerth affirmative defense to intangible harassment by a supervisor (as set out in PJC 107.24), which had been recognized in Williams , 313 S.W.3d at 810, as a feature of Texas’s law of sexual harassment. Personal liability. Section 21.141 expressly defines an “employer” to include any person who “acts directly in the interests of an employer in relation to an employee.” Accordingly, it appears that supervisors, managers, human resources professionals, and co-workers may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for failing to address alleged sexual harassment. Because Tex. Lab. Code § 21.141 contemplates the possibility of personal

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