Member Article

The Equal Employment Opportunity Commission received more than 12,000 charges in 2009 from employees claiming sexual harassment—a 6 percent increase from three years ago. Although harassment claims are on the rise, Haynes and Boone continues to secure significant sexual harassment victories for its clients, and employers overall. In fact, for the fifth time in the last decade, Haynes and Boone obtained a published appellate court opinion that makes it more difficult for employees to win sexual harassment lawsuits. See Twigland Fashions, Ltd. v. Miller, __S.W.3d __, 2010 WL 850170 (Tex.App.—Austin 2010, no pet.). As a testament to its significance, the Miller opinion was cited in the Texas Bar Journal as one of the significant developments in Labor and Employment for 2010.

Haynes and Boone Obtains a “Take Nothing” Judgment on Behalf of Client

In 2007, Nemia Miller sued her former employer, claiming that she was fired after she refused to go along with her supervisor’s sexual advances. Miller alleged that her supervisor, among other things: (1) asked her about her sex life; (2) told her she owed him kisses and hugs; (3) told her that he loved her; and (4) gave her inappropriate hugs in the workplace. At trial, Haynes and Boone attorneys Laura O’Donnell and Lawrence Morales II convinced the jury to reject Miller’s primary claim that she was fired for not submitting to her supervisor’s advances. The jury, however, found that Miller was sexually harassed by her supervisor and awarded her $12,000, which was substantially less than she requested.

On appeal, Haynes and Boone argued that Miller’s allegations failed to rise to the level of an actionable sexual harassment claim because the alleged conduct was infrequent, not severe, and did not affect Miller’s work performance. In March, 2010, the Austin Court of Appeals reversed the trial court’s judgment, and rendered that Miller take nothing on her claim and that Miller pay the employer for all costs related to the appeal. In its 33-page opinion, the Austin Court of Appeals relied heavily on three other sexual harassment opinions obtained by Haynes and Boone attorneys Dean Schaner, Felicity Fowler and Matthew Deffebach in Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005); Hockman v. Westward Communications, 407 F.3d 317 (5th Cir. 2004); and Green v. Industrial Specialty Contractors, 1 S.W.3d 126 (Tex.App.—Houston [1st Dist.] 1999). The Miller Court’s opinion makes clear that sexual harassment plaintiffs will only prevail if they produce probative evidence of conduct that is sufficiently “extreme” to create an “abusive” work environment. Importantly, this opinion clarifies that unwelcome physical contact by a supervisor, alone, will not necessarily entitle a plaintiff to prevail on a sexual harassment claim. The Austin Court of Appeals denied en banc review in October, and Miller did not appeal to the Texas Supreme Court.

Preventing Sexual Harassment Claims, and Increasing Chances of Prevailing

Miller and the continued increase in sexual harassment charges underscore the importance of employers taking proactive steps to prevent sexual harassment and protect themselves against these actions. For example:

• Employers should implement and enforce a clear anti-harassment policy and reporting system that defines harassment in plain language, and requires employees to immediately report any harassing conduct.
• The policy should identify several company officials to whom the employee can report harassment and should contain a mandatory bypass mechanism, meaning that if an employee’s first attempt at reporting harassment is unsuccessful, the employee should be required to report the conduct to a second source.
• The policy should also contain an express prohibition against retaliation for employees who lodge a harassment complaint.
• Employers should periodically train their supervisors and employees on how to identify harassment, and how to specifically use the employer’s anti-harassment policy to report it in their workplace.

Taken together, these steps will make it less likely that harassment will occur in the workplace. If harassment does occur, these steps will also give employers an opportunity to stop it before it reaches the “extreme” and “abusive” level.

If you have any questions related to workplace harassment issues, please visit the Haynes and Boone Labor and Employment Practice page of our website or contact one of the attorneys listed below: