Chapter § 4-30 § 21.106. Sex Discrimination

• Jurisdiction: United States

4-30 § 21.106. Sex Discrimination

(a) A provision in this chapter referring to discrimination because of sex or on the basis of sex includes discrimination because of or on the basis of pregnancy, childbirth, or a related medical condition.

(b) A woman affected by pregnancy, childbirth, or a related medical condition shall be treated for all purposes related to employment, including receipt of a benefit under a fringe benefit program, in the same manner as another individual not affected but similar in the individual's ability or inability to work.

4-30:1 Commentary

4-30:1.1 Straight-Up Discrimination and Hostile Environment Claims

Sex discrimination claims generally relate to either straight-up discrimination, such as non-selection of a woman for promotion, or a hostile environment claim. The latter comes in two flavors: hostile environment based on gender; or a sexually hostile work environment.

4-30:1.2 "Because of Sex" Does Not Mean Motived by Sexual Desire

A key issue in either event in establishing a violation is that the employer's conduct must be "because of sex." This phase does not mean that a hostile environment claim requires the "bad" actor be motivated by sexual desire.

• Rosario v. Department of the Army, 607 F.3d 241 (1st Cir. 2010) (court of appeals reverses summary judgment for employer in hostile environment claim; holds that plaintiff need not establish that her supervisor's actions were borne of a sexual desire for her, but because of her gender).

The U.S. Supreme Court recently took up another important Title VII question.

• Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (June 15, 2020) (by a six-three vote, the Supreme Court said that discrimination under Title VII because of sex/gender includes sexual orientation discrimination; court also held transgender status protected by Title VII's prohibition against sexual discrimination).

It is important, though, to note that the Supreme Court did not declare that sexual orientation/transgender status is a protected classification. Rather, the court relied exclusively on the language of Title VII prohibiting unlawful discrimination "because of sex." Thus, a gay male employee subjected to supervisor harassment for his or her marriage to a same sex person is harassed because of sex because if the male employee were a woman, he would not be so subjected. With transgender status, the same type of analysis applies. An employee who changes religion from Christian to Buddhist and is fired as a result is fired because of religion. Similarly, a man who transgenders from male to female and is fired as a result is being discriminated against because of sex.

The litigation point is that sexual orientation/transgender status is not freestanding protected classifications; rather the litigant must tie the discrimination to an adverse action taken "because of sexual" and offer facts to support that construct.

Finally note that Texas courts are not required to adhere to the Bostock analysis. Thus, they are free to reject the argument that the Texas Labor Code prohibits unlawful discrimination based on sexual...