PJC Business

PJC 107.22

E MPLOYMENT

Same-sex sexual harassment. For cases involving allegations of same-sex sex ual harassment, see the Comment to PJC 107.21. 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 v. San Antonio Aerospace, L.P. , No-04-11-00478-CV, 2012 WL 1940661, at *3 (Tex. App.—San Antonio May 30, 2012) (“With regard to the alleged constructive discharge, we note that absent an official act underlying the con structive discharge, constructive discharge does not rise to the level of a tangible employment action that would preclude the Company from asserting the Faragher/ Ellerth affirmative defense.”) (citing Suders , 542 U.S. at 141, 148–49).

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