Court Says Texas Law Prohibits Sexual Orientation Discrimination

In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that "claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA)." 

The Sims decision represents the first time that Texas law has been interpreted to provide workplace protection for LGBTQ workers and it follows on the heels of the June 2020 decision from the Supreme Court of the United States in Bostock v. Clayton County, Georgia, ruling that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sexual orientation and gender identity.

Factual Background

The plaintiff worked as a student development associate at the Tarrant County College District's (TCCD) South Campus. After three years on the job, TCCD placed the plaintiff on paid administrative leave pending an internal investigation of possible financial misconduct. Around March 26, 2019, the plaintiff filed a charge of discrimination with the Fort Worth Human Relations Commission, alleging that TCCD had violated both a city of Fort Worth ordinance prohibiting discrimination based upon sexual orientation and the TCHRA's prohibition on sex discrimination. On July 1, 2019, TCCD discharged the plaintiff for financial misconduct and other violations of various TCCD policies.

Procedural Background

The plaintiff sued TCCD, alleging discrimination based upon her sexual orientation in violation of the Texas Constitution and retaliation under the Texas Whistleblower Act. TCCD filed a plea to the jurisdiction, arguing that it had not waived its governmental immunity from suit under the Whistleblower Act and that "the court lacked jurisdiction to hear [the plaintiff's] whistleblower and constitutional claims because 'the TCHRA [was] [the plaintiff's] exclusive statutory remedy for addressing a discriminatory based retaliation claim in state court.'" In response, the plaintiff asserted that her claim was not pre-empted by the TCHRA "because the TCHRA did not prohibit sexual orientation discrimination." The trial court denied TCCD's plea to the jurisdiction, which TCCD appealed.

The Texas Appeals Court Holding

The Fifth Court of Appeals began its analysis by considering the TCHRA's plain language and Texas Supreme Court precedent in interpreting the TCHRA while recognizing that "no Texas state court has addressed the issue of whether discrimination based on sexual orientation is prohibited under the TCHRA." As such, it was appropriate for the court to "look to federal law for guidance." 

Interestingly, when the trial court denied TCCD's plea to the jurisdiction, the applicable federal authority held Title VII did not protect against discrimination based on sexual orientation. Yet, four months later, the Supreme Court issued its opinion in Bostock, wherein the court held that Title VII's prohibition on discrimination "because of … sex" prohibited an employer from discriminating against an individual for being homosexual or being a transgender person.

Consequently, the Fifth Court of Appeals concluded that it must follow Bostock "[i]n order to reconcile and conform the TCHRA with federal anti-discrimination and retaliation laws under Title VII" and held that "the TCHRA's prohibition on discrimination 'because of … sex' … prohibit[ed] discrimination based on an individual's status as a homosexual or transgender person."

The court of appeals reversed the trial court's denial of TCCD's plea to the jurisdiction as to the plaintiff's claim under the Whistleblower Act, reasoning that the plaintiff's remedy under the TCHRA foreclosed any action, but affirmed the trial court's denial of TCCD's plea to the jurisdiction regarding the plaintiff's constitutional claims. The court then remanded the case to the trial court to permit the plaintiff to plead a claim under the TCHRA.

Key Takeaways

The Sims decision should not come as a surprise, given the long-standing practice of Texas state courts following and applying federal law when interpreting the TCHRA. To the extent not already done in response to Bostock, Texas employers may want to ensure that their equal employment opportunity policies expressly extend to sexual orientation and gender identity and train HR personnel and managers accordingly.

Stephen E. Hart is an attorney with Ogletree Deakins in Houston. Tiffany Cox Stacy is an attorney with Ogletree Deakins in San Antonio. © 2021 Ogletree Deakins. All rights reserved. Reposted with permission.