The Dallas Court of Appeals has held that the Texas Commission on Human Rights Act (TCHRA) and its prohibition against unlawful employment practices because of sex, encompasses claims for unlawful employment practices because of sexual orientation.  This interpretation is the first for an appellate court in Texas and the court’s analysis follows the United States Supreme Court’s holding from last year in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).

Discrimination Claim

The procedural posture in Tarrant County College District v. Sims, No. 05-20-00351-CV (Tex. App.—Dallas Mar. 10, 2021, n.p.h.), is a little unusual.  Plaintiff Amanda Sims filed suit against her former employer, Tarrant County College District (TCCD), claiming that she was discriminated against because of her sexual orientation, and alleging violations of the Texas Constitution and the Texas Whistleblower Act.  TCCD filed a plea to the jurisdiction and sought to dismiss Sims’ claims on the basis of sovereign immunity.  TCCD sought dismissal of Sims’ Whistleblower Act claims in part because it contended that the TCHRA provided the exclusive remedy of Sims’ discrimination and anti-retaliation claims.   In short, TCCD asserted that the TCHRA is applicable to claims for discrimination based upon sexual orientation.  Sims’, however, asserted that the TCHRA did not preempt her claims because she asserted that the TCHRA does not prohibit sexual orientation discrimination.

TCCD Appeal

In TCCD’s appeal of the denial of its plea to the jurisdiction, the Dallas Court of Appeals was presented with the jurisdictional question of whether the TCHRA preempts Sims’ sexual orientation discrimination claims because of the fact that the Act applies to unlawful employment acts “because of sex.”  Writing for the court of appeals, Justice Craig Smith noted that the TCHRA was enacted to address workplace discrimination and to conform with federal anti-discrimination and retaliation laws under Title VII of the Civil Rights Act.  After noting that the Texas Supreme Court has advised that Texas courts should look to federal law for guidance when the TCHRA and Title VII contain analogous language, the opinion turned to the U.S. Supreme Court’s interpretation of Title VII’s analogous language that was at issue in the Bostock case.

In Bostock, the U.S. Supreme Court observed that while the U.S. Congress likely did not have sexual orientation in mind when it enacted Title VII, the plain wording is controlling such that when an employer fires an individual for being gay or transgender, a violation of the act has occurred.  Bostock, 140 S. Ct. at 1737, 1754.   The Dallas Court of Appeals concluded that Bostock’s reasoning required that Texas’s law be construed in the same fashion to prohibit discrimination based on an individual’s status as a homosexual or transgender person.  Thus, the court held that the TCHRA was applicable and forecloses Sims’ claims for relief under the Texas Whistleblower Act.

Justice Schenck filed a concurring opinion in which he asserted that it was unnecessary for the majority to reach this question because he asserted that the issue had not arisen in an adversarial posture.  He further opined that the language of the TCHRA must be construed according to the language in use at the time and the language at the time would not have allowed for the construction given to it by the majority.  He further accused the majority of exceeding its role of interpreting the law.