The Texas Supreme Court reversed the jury decision in Nicholas v. SAWS. See decision here. The result is not surprising. The Texas Supreme Court frequently reverses jury verdicts in favor of victims of discrimination. The court found that Debra Nicholas did not have a reasonable belief that she was opposing discrimination when she warned a SAWS executive about asking two younger staffers to lunch. I previously wrote about this case here and here. The decision omits some facts, such as it was the SAWS General Counsel who first believed Greg Flores’ actions amounted to possible sexual harassment. The General Counsel asked Debra Nicholas to get involved. One of the junior staffers said she would file a sexual harassment complaint if the invitations did not stop. I wrote earlier that SAWS’ argument on appeal would be difficult to win.  See my prior post here. Yet, it is that every basis on which the Texas Supreme Court rests its decision. Indeed, SAWS came up with that argument after its earlier appeal to the Fourth Court of Appeals. The Supreme Court, nevertheless, accepted the argument because it involves SAWS’ immunity from suit. Cough, cough. That is a slim reed on which to allow a new argument on appeal. Partis are not supposed to be bring up new arguments on appeal. But, the Supreme Court allowed this new argument. So, now, an element of a case will be part of a governmental entity’s immunity from suit, and most new arguments would be acceptable on the second or third appeal. That is the Supreme Court second error.

The first error is found in the substance of the opinion. The Texas Supreme Court has imposed a new, high burden for retaliation cases. The high court rightly states that sexual harassment must be severe or pervasive to constitute an actionable complaint. And, the court is right that offhand comments or incidents alone will not suffice. But, that reasoning addresses a different issue, whether certain actions rise to the level of sexual harassment. This issue is different. This case asks what constitutes “good faith” belief that a person is opposing discriminatory conduct. There is a gray area, such as here, where a potential victim seeks to stop harassment before it becomes severe or pervasive. Protection from reprisal was intended to protect persons who believe in good faith that some conduct is discriminatory. The Texas Supreme Court seems to have conflated two different issues.

The courts have long held that there need not be an actual underlying violation of law by the harasser. See, e.g. Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1138-39 (5th Cir. 1981) (employee is protected under the participation clause “regardless of the truth or falsity of the contents of the charge”); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1004-05 (5th Cir. 1969) (fact that employee made false and malicious statements before EEOC is irrelevant to protection under participation clause); Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (Nothing in wording of participation clause even implies a requirement that the underlying claim be reasonable). There are many more cases all finding that the underlying complaint must be in “good faith,” but not necessarily an actual violation.

The Texas Supreme Court has now added a new requirement for participation in opposition to discrimination: the person must reasonably believe the claim is valid. That will stifle great many complaints. Requiring reasonableness is tantamount to requiring the underlying complaint constitute a valid complaint of discrimination.

As the Fifth Circuit said in 1969, “. . . a single poor, ignorant employee with a grievance, not a sling shot in his hand, faces a huge industrial employer in this modern David and Goliath confrontation . . ” Pettway, id, at 1005. Protection must be afforded to those who seek the benefit of Title VII to equalize, said the Fifth Circuit in 1969. Pettway, id. The Texas Supreme Court is undoing decades of precedent in this decision.