Resilient plaintiffs = less protection?

On Oct. 22 by a 3-2 vote, the Austin Court of Appeals denied an en banc hearing in Twigland Fashions Ltd. v. Miller that I blogged about on May 3. Recall that my take on the panel opinion was that it imposed a very high burden of proof on plaintiffs who complain of a hostile work environment. In fact, the panel opinion held that a plaintiff's ability to function at work, despite the purported harassment, is a factor militating in favor of a finding that there is no hostile environment. That's wrong. The issue is not whether the employee's work performance was impaired but whether the conditions at work were discriminatorily altered because of the harassment. The dissent took an interesting and incisive tack on this idea: "It would not be unreasonable [for the jury] to assume that in the absence of the harassing atmosphere, Miller's performance in the workplace might have been better than it was." Next stop, Texas Supreme Court?

Comments

[Robert D. Kilgore, San Antonio]

Don't think our Supremes are going to adopt the dissent's (or your) point of view. Otherwise it opens a Pandora's box that a conservative judiciary wants to avoid.