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Texas Court of Appeals Further Clarifies the Definition of Protected Activity

Published by and on February 9, 2016

A recent decision in Texas clarifies the distinction between statutory protection and additional guidelines or requirements that employers may use to foster a professional workplace.

A decision handed down by Texas’ Fourteenth District Court of Appeals clarifies an important distinction between statutory protection and additional guidelines or requirements that employers may further institute through their own policies in order to foster a professional workplace. In Houston Methodist San Jacinto Hospital v. Teri Ford, the Court of Appeals reversed a jury verdict in favor of an employee who claimed she had reported sexual harassment. The Court found that the employee did not, in fact, report sexual harassment, as the term is defined under the Texas Commission on Human Rights Act (TCHRA).

In 2009, Teri Ford reported that an old supervisor, Raul Reyes (who no longer worked for the hospital by the time of the report), had attempted to kiss her twice. According to Ford, the incidents happened more than three years prior to her reporting, and after they happened, she continued to have a professional working relationship with Reyes. Additionally, Ford had been given an opportunity to report the incidents during an investigation into Reyes when he was still with the hospital, and she did not do so at that time. Ford’s employment was terminated shortly after her report, and she filed suit alleging retaliation.

A jury found in Ford’s favor, and the hospital appealed on the grounds that Ford had not reported sexual harassment and, therefore, had not engaged in protected activity. The Court of Appeals opinion in this case provides an excellent ‘lay-of-the-land’ examination of this issue under Texas law.

The key point is that an employee must have a “good-faith, reasonable belief that the underlying discriminatory practice violated the TCHRA. An employee’s subjective belief is not enough – it must be objectively reasonable. Additionally, the employee has to believe that the conduct complained of is a violation of Texas’ civil rights law – not simply conduct the employee considers offensive.

The Court of Appeals reversed the trial court’s judgment, holding that, under the particular facts of the case, there was no evidence that Ford’s belief that two attempted kisses constituted sexual harassment was reasonable.

Immediately applicable to Texas employers, however, was the Court’s reply to Ford’s argument that the complained-of conduct constituted harassment under the hospital’s own anti-harassment policy, and therefore, according to Ford, her belief must have been reasonable.

The Court reminds us that just because an employer’s policy is broader that the TCHRA, this does not mean that every complaint made under the employer’s own policy will constitute protected activity under the TCHRA. Therefore, Texas employers with broad anti-harassment policies need not be immediately concerned that they are opening themselves to liability that does not otherwise exist under the statute by prohibiting conduct that isn’t necessary prohibited by the TCHRA.

Welter Insight

Texas employers should not be wary of crafting broad anti-harassment and discrimination policies for fear of invoking additional liability under the retaliation statute. This distinction is important as it ensures that employers can draft and develop policies that seek to support and foster cultures that are in alignment with the intent behind the TCHRA, without concern that doing so will, in and of itself, create new risk. The Court of Appeals made clear that the TCHRA is the baseline for the definition of protected activity – not the employer’s policy.

Image Credit: abbamouse (Flickr @ Creative Commons)
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