Texas Court Says LGBT Bias Barred By State Law

The Texas Commission on Human Rights Act (“TCHRA”) is the state counterpart of Title VII of the Civil Rights Act of 1964 (“Title VII”). Both the TCHRA and Title VII prohibit discrimination in employment “because of … sex.”

Last year, in Bostock v. Clayton County, Georgia, the U.S. Supreme Court held Title VII’s prohibition on discrimination “because of sex” prohibits an employer from failing or refusing to hire or from firing an individual for being homosexual or being a transgendered person. On March 10, 2021, in Tarrant County College District v. Sims, Texas’ Fifth Court of Appeals similarly held the TCHRA’s prohibition “because of sex” includes discrimination because of sexual orientation or sexual identity.

Where Does Sims Go From Here?

Tarrant County College District can, and likely will, file a petition for review before the Texas Supreme Court. The Texas Supreme Court may grant or deny such a petition.

There are also fourteen Courts of Appeal in Texas. The Fifth Court of Appeals covers only five (Collin, Dallas, Grayson, Hunt, Kaufman & Rockwall) of Texas’ 254 counties. As with the U.S. Supreme Court, the likelihood the Texas Supreme Court will grant a petition increases if a split develops among the Courts of Appeal as to the breadth of the TCHRA.

What Does Sims Mean for Texas Employers?

To be sure, Texas employers with 15 or more employees are subject to the proscriptions of Title VII. Nevertheless, filing suit under the TCHRA in state court can have advantages for plaintiffs.

In certain Texas counties, a state judge can be more beneficial for a plaintiff than a federal judge. In Dallas County, for instance, District Judges are reluctant to grant summary judgment as to employment discrimination claims. This reluctance is not shared by many of the federal judges of the U.S. District for the Northern District of Texas.

The trial format in state court, moreover, can be more beneficial for a plaintiff than the trial format in federal court. In state court, for instance, voir dire is generally conducted by the attorneys. In federal court, voir dire is generally performed by the judge.

These advantages, in turn, can impact case outcomes and settlement values. In short, the availability of a claim under the TCHRA can be, and often is, significant for employers.

Robert G. Chadwick, Jr. frequently speaks to employers and non-profit organizations regarding labor & employment issues. To contact him for a speaking engagement please e-mail him at rchadwick@realclearcounsel.com.

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