One of the hottest topics in Texas employment law today is gender discrimination, particularly sexual harassment and sexual orientation. Texas employment law does not offer clear and specific protections for these groups of workers, allowing businesses to discriminate at work, promotion and termination decisions. Sexual harassment laws are also much more complex than those of other states. This article will provide a basic understanding of this legal controversy.
In the case of sexual harassment, it is important to note that many of these protections for sexual harassment are in place only to protect employees from harassment by co-workers. A company cannot, for instance, fire an employee due to the fact that they have complained of sexual harassment, even if they engaged in unwanted touching or physical contact. A company cannot take away someone's right to work at their company for any reason, be it religious or political, and then make it possible for them to harass other employees. The courts, however, have made it easier for companies to defend their actions against claims of sexual harassment, often requiring proof that the harasser intended to offend the victim rather than that the victim was offended in his/her own mind.
On the other hand, it is necessary to distinguish between sexual orientation, gender identity and sexual harassment. Sexual orientation is usually considered to be based upon a person's personal beliefs, whether religious or otherwise. For example, if a plaintiff works as a gay waitress, the employer cannot fire her because she identifies as gay, unless the employer can prove that the discrimination is due to her personal beliefs. A plaintiff may have been fired for being a lesbian, but the plaintiff would not be able to win on the grounds of her personal beliefs. Similarly, a plaintiff may have been discriminated against due to her gender, but not on the basis of her personal beliefs. Sexual orientation discrimination is not as common as gender discrimination.
Another type of discrimination that often occurs in the workplace is that of gender. A gender non-conformity in a worker may be a result of biological factors, like intersex or hormone imbalance, or social factors like race or sexual orientation. Some employers, however, will deny the ability of certain groups of employees to work in their organization because they have an incorrect sex, such as intersex or a genetic abnormality. The courts have allowed such discrimination to go forward because the discrimination is based on the employee's actual gender. rather than their gender identity, because it is the sex that truly matters in employment decisions.
To clarify, it is also important to note that sexual harassment is often protected under Texas laws, especially in the area of sexual orientation discrimination. In order to determine whether an employee has experienced sexual harassment, the employer must show that the harasser did not view the employee's conduct in a “bias-motivated” manner, and it cannot be used as a “method of harassment.” If the employee believes that the harasser is discriminatory based on both their sex and their sexual orientation, the courts may well conclude that the employee has been harassed and cannot prove that the conduct was done for a discriminatory reason.
In many cases, Texas Employment Law also protects the right of the victim of sexual harassment to seek damages from the harasser in a claim for sexual harassment. There are many resources available for victims of sexual harassment. These include a number of government agencies that offer free legal consultation services.