Texas Restaurant Sexual Harassment Cases

Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 protect individuals against employment discrimination and harassment based upon sex.  At www.twc.state.tx.us/crd/sex-discrimination.html, the Texas Workforce Commission explains that sex discrimination occurs when one is treated differently than other employees because of one’s sex, including pregnancy, and stereotypes and assumptions based on sex.  Examples of unlawful actions are denial of hiring, termination, promotion or any other term, condition, or privilege of employment.

As stated by the Texas Workforce Commission Civil Rights Division (TWC), Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act protect employees from employment discrimination based upon sexual harassment also.

According to the TWC, sexual harassment can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.  A person subjected to these types of sexually offensive behaviors may experience work performance interference.  Further, this type of work-related misconduct can also create an intimidating, hostile or offensive work environment.  People forced to endure this harassment may also experience adverse employment actions and that may constitute retaliation and/or sexual harassment.

Additional general information provided to the public by the TWC shows that sexual harassment can occur whether the harasser is male or female.  The harasser can be a supervisor, an agent of the employer, a supervisor in another area, a co-worker or a non-employee.  The harasser’s behavior must be unwelcome and anyone can be affected by the offensive conduct.

In a Texas restaurant sexual harassment case Fourth & Frankford Sonic, Ltd. v. Brown, 2011 Tex.App. Lexis 10195 (Tex.App. – Amarillo, 2011, no pet.), Chelsea Brown sued her former employer, Fourth & Frank Sonic, Ltd., charging that she was subjected work-related sexual harassment.  More specifically, Ms. Brown, a carhop, alleged that a cook and manager-in-training, Eugene Houston, touched her inappropriately in four workplace occurrences.  For example, Houston put his arms around Brown, placed his body against her back and backside as if spooning, and ran his hand down her back to her buttocks.  Although Brown reported inappropriate contact, Houston’s personnel records reflected no discipline being provided because of the incidents.  Further, Sonic neglected to train its employees with regard to marinating a harassment free environment, according to the court opinion.

For her part, Brown contended that the occurrences constituted sexual harassment and a hostile work environment in violation of Texas Labor Code Section 21.051.  This section of the Texas Labor Code states, in part, that an employer commits an unlawful employment practice if because of sex the employer discriminates against a person in connection with the terms, conditions, or privileges of employment.  She further asserted that she belonged to a protected class, was subjected to unwelcome sexual harassment based on sex and her employer knew or should have known of the harassment and failed to take remedial action.

A jury decided Brown’s lawsuit in favor of Brown.  On appeal, the Amarillo Court of Appeals left undisturbed the judgment in Brown’s favor but remanded the case to the trial court for further proceedings the issue of Brown’s attorney fees.

In another Texas restaurant sexual harassment case Waffle House, Inc. v. Williams, 2011 Tex.App.Lexis 6849 (Tex.App. – Fort Worth 2011, pet. den’d), Cathie Williams brought suit against her employer, Waffle House, asserting sexual harassment under Texas Labor Code Section 21.051.  Like Brown, Williams, a waitress, claimed she was sexually harassed by a co-worker.  Like Brown, Williams claimed she was sexually harassed by a cook.  Also like Brown, Williams contended that she reported the unwelcome sexual behavior.  In addition, Williams prevailed in her case as well.

Pointing to federal case law, the Fort Worth Court of Appeals noted in its decision that a sexually hostile work environment is a violation of the law because a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living is an arbitrary barrier to sexual equality at the workplace.  Commenting further, the Court of Appeals stated that a discriminatorily abusive work environment can detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers and the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their gender offends the broad rule of workplace equality of Title VII of the federal Civil Rights Act.

Prior to filing her sexual harassment lawsuit, Williams received right to sue notices from both the TWC and the United States Equal Employment Opportunity Commission (EEOC), a federal agency charged with enforcing laws that prohibit sex discrimination, including sexual harassment and sexually hostile work environments.

For Fiscal Year 2013, the EEOC reported in February 5, 2014 news release that it received 93,727 charges.  That number represented a 5.7 percent decrease from the 99,412 charges the EEOC received in 2012.  As in previous years, retaliation under all statutes enforced by the EEOC was the most frequently cited basis for discrimination charges, increasing in both actual numbers (38,539) and as a percentage of all charges (41.1 percent) from the previous year.  In terms of sex discrimination charges, including sexual harassment and pregnancy discrimination, there were 27,687 charges filed, constituting 29.5 percent of total charges filed for Fiscal Year 2013.  EEOC enforcement and litigation data for Fiscal Year 2013 can be found at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm .

With respect to the EEOC, further information about the federal agency and the laws it enforces is available on the EEOC website at www.eeoc.gov .  In addition, A Houston, Texas office for the EEOC and filing of employment-related complaints about racial harassment is located at Total Plaza, 1201 Louisiana Street, 6th Floor, Houston, Texas 77002.  It is open Monday – Friday 8 a.m. to 4:30 pm. A phone number for the Houston office is listed as 1(800)669-4000.

Whether restaurant workplace sexual harassment, including abusive sexist comments, conduct of a sexual nature and jokes, occurs in Houston restaurants or elsewhere in Texas, people subjected to a sexual harassment hostile work environment in Texas restaraunts may contact the TWC or EEOC to make charges of discrimination and trigger state or federal investigations of sexual harassment complaints.  In addition, people subjected to unlawful workplace sexual harassment may consult an attorney to discuss whether the facts and circumstances of the potential employment discrimination case support filing of a sexual harassment lawsuit.