Not All Harassment is Unlawful Under Title VII or Chapter 21
Workplace bullying is not inherently illegal under Title VII of the Civil Rights Act or Chapter 21 of the Texas Labor Code. Many of my clients are shocked that the law allows for co-workers and managers to engage in rude, uncivil, hostile, abrasive, abusive, uncouth, or just down right disgusting behavior in the workplace and not have any basis to sue either the employer or the other employees in their individual capacities.
"Title VII does not prohibit all harassment." Gardner v. CLC of Pascagoula, L.L.C., 915 F.3d 320, 325 (5th Cir. 2019), as revised (Feb. 7, 2019). The "standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a 'general civility code.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283-84, 141 L. Ed. 2d 662 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 1002, 140 L. Ed. 2d 201 (1998)). These standards are intended [**9] to "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. at 788, 118 S. Ct. at 2284 (internal quotation marks omitted). "[A]llegations of unpleasant work meetings, verbal reprimands, improper work requests, and unfair treatment do not constitute actionable adverse employment actions as discrimination or retaliation." Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 826 (5th Cir. 2019) (internal quotation marks omitted). Rather, there must be "discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment." Badgerow v. REJ Properties, Inc., 974 F.3d 610, 617 (5th Cir. 2020) (internal quotation marks and alterations omitted).
Bye v. MGM Resorts Int'l, Inc., 49 F.4th 918, 923 (5th Cir. 2022) (emphasis added). It all boils down to this: the harassment has to be based on a protected characteristic. Badgerow, 974 F.3d at 617. And while discourtesy or hostile behavior may be a violation of a workplace policy, in Texas (like in most states), such a violation does not create a private cause of action against the employer unless the employer has explicitly modified the at-will employment relationship. SeeWerden v. Nueces Cty. Hosp. Dist., 28 S.W.3d 649, 651-52 (Tex. App.—Corpus Christi 2000, no pet.).
If you believe some aspect of your termination to be unlawful, please schedule a consultation today. Consultations are completely confidential. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.