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How long must sexual harassment of a Texas worker by a Texas employer occur to be pervasive enough to create a hostile work environment under Texas law?

Jim M. Zadeh
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Attorney at Law

Often employers in sexual harassment cases in Texas argue that sexual harassment was not severe enough and thus cannot rise to the level sexual harassment under Texas law because “minor or insignificant” incidents can never be sufficiently severe and pervasive. However, Texas law only requires that the sexual harassment be sufficiently severe or pervasive. Thus, if the sexual harassment is sufficiently pervasive in the eyes of the fact finder, then a series of minor or seemingly insignificant events of sexual harassment may give rise to a valid sexual harassment cause of action in Texas.

Hostile work environment claims are serious and serve “to level the playing field for women who work by preventing others from impairing their ability to compete on an equal basis with men.” DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591 (5th Cir. Tex. 1995). This type of “claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace.” Mire v. Tex. Plumbing Supply Co., 286 Fed. Appx. 138, 140 (5th Cir. Tex. 2008).

For a prima facie claim of hostile work environment, the Plaintiff must show she (1) was a member of a protected class; (2) was subject to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the harassment affected a “term, condition, or privilege” of employment; and (5) her employer knew or should have known of the harassment and failed to take prompt remedial action. Woods v. Delta Beverage Group, Inc., 274 F.3d 295, 298-99 (5th Cir. 2001). Proof of the final element is not required where the alleged harasser is a supervisor with authority over the employee. Mire v. Tex. Plumbing Supply Co., 286 Fed. Appx. 138, 140 (5th Cir. Tex. 2008).; LeMaire v. Louisiana Dept. of Transp. and Development, 480 F.3d 383, 393 n.3 (citing Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir.1999)).

To affect a term, condition, or privilege of employment, the harassing conduct must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.'" Aryain v. Wal-Mart Stores of Tex., LP, 534 F.3d 473, 479 (5th Cir.2008) (quoting Lauderdale v. Tex. Dep't of Criminal Justice, 512 F.3d 157, 163 (5th Cir.2007)). Importantly, the test of whether harassment is “severe or pervasive” is stated in the disjunctive.  Mire v. Tex. Plumbing Supply Co., 286 Fed. Appx. 138, 142 (5th Cir. Tex. 2008).; Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007). The test requires only that Plaintiff show it was severe or pervasive and not both. Id.

The 5th Circuit has recognized that an egregious, yet isolated, incident can alter the terms, conditions, or privileges of employment and satisfy the fourth element necessary to constitute a hostile work environment. The inverse is also true: Frequent incidents of harassment, though not severe, can reach the level of pervasive, thereby altering the terms, conditions, or privileges of employment such that a hostile work environment exists. The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct. Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007) See also Harvill v. Westward Communications, L.L.C, 433 F.3d 428, 435-36; El-Hakem v. BJY Inc., 415 F.3d 1068, 1073 (9th Cir.2005) (“The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.”) (quoting Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir.2001)); Cerros v. Steel Techs., Inc., 288 F.3d 1040, 1047 (7th Cir.2002) (stating severity and pervasiveness are, “to a certain degree, inversely related; a sufficiently severe episode may occur as rarely as once, while a relentless pattern of lesser harassment that extends over a long period of time also violates the statute.”)The 5th Circuit has found that a regular pattern of frequent verbal ridicule or insults sustained over time can constitute severe or pervasive harassment sufficient to violate Title VII. See, e.g., Walker v. Thompson, 214 F.3d 615, 626 (5th Cir. 2000) (holding African-American employees subjected to a variety of racial slurs over three-year period raised fact issue as to whether slurs were sufficiently severe or pervasive to violate Title VII).

Allegations of conduct that do not rise to the level of severe have been found sufficient to raise a genuine issue of a material fact to establish hostile work environment sexual harassment. See Donaldson v. CDB Inc., 335 Fed. Appx. 494 (5th Cir. 2009) (genuine issues of material fact existed as to whether supervisor’s alleged comments to female employee, including sexually suggestive comments regarding her physical appearance were sufficiently severe or pervasive) ; Alaniz v. Zamora-Quezada, 591 F.3d 761 (5th Cir. Tex. 2009); Lauderdale v. Tex. Dep't of Crim. Justice, 512 F.3d 157, 164 (5th Cir. 2007) (holding that daily phone calls and unwanted sexual advances by co-worker over a four-month time period amounts to pervasive harassment); Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996) (holding that co-workers comments about plaintiff's sexual activity and proclivity, made two to three times a week and sometimes in front of co-workers, were sufficiently severe and pervasive to create a hostile work environment); Dediol v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011).

Texas law does recognize that a series of sexual harassment events that taken alone are not sufficiently severe can rise to the level of sexual harassment.  So, if you are a Texas worker who has suffered a series of sexual harassment events from a Texas employer or co-workers that may seem minor, you still may have a sexual harassment claim under Texas law.