Articles Posted in Nursing Home Neglect and Abuse

Modern technology has created a new form of sexual harassment in the Texas workplace. Someone will find a way to abuse just about anything that is good and with the advent of high quality, affordable camera phones comes “sexting.” “Sexting” is the texting of sexual explicit pictures. When done in the workplace “sexting” falls squarely within the prohibitions of Texas sexual harassment laws. Sexual harassment is a violation of Section 21 of the Texas Labor Code. Any offensive, unwelcome conduct of a sexual nature in the workplace, whether directed toward the plaintiff or done in the plaintiff’s presence, gives rise to a cause of action for sexual harassment.

Sexual harassment victims may recover back pay, front pay, past and future compensatory damages, past and future pecuniary damages, punitive damages, costs, and attorneys fees. Back pay is comprised of the wages lost by the victim prior to trial and should be presented in the form of a net loss after the application of the applicable tax rate. Front pay is the future wages which the victim is reasonably anticipated to lose and is awarded as an alternative to reinstatement in situations where reinstatement is not feasible. Reinstatement in sexual harassment cases, particularly where smaller employers are involved, is usually not feasible. Pecuniary losses are economic losses other than lost wages such as moving expenses, interviewing expenses, counseling fees, medical bills and other out-of-pocket expenses caused by the unlawful behavior. Pecuniary losses both in the past and in the future are recoverable. Compensatory damages are those non-economic damages such as mental anguish, emotional trauma, loss of enjoyment of life, suffering, etc., suffered as a result of the sexual harassment. Punitive damages are awarded to punish the perpetrator and/or employer for extreme, outrageous, malicious or otherwise morally culpable conduct and to deter the defendant(s) from such conduct in the future. The recovery of punitive damages requires a showing of fraud, malice or gross negligence.

The Texas Labor Code set for limits on certain sexual harassment damages. Texas Labor Code §21.2585 limits the combined amount of future pecuniary losses, compensatory damages and punitive damages that a sexual harassment victim may recover based on the number of employees of the defendant. The damage limitations for each plaintiff are: 1) $50,000.00 against an employer with 15 – 100 employees; 2) $100,000.00 for an employer with 101 – 200 employees; 3) $200,000.00 against an employer with 201 – 500 employees; and, 4) $300,000.00 against an employer with more than 500 employees. Thus a Texas sexual harassment victim may recover up to the statutory limit of combined future pecuniary losses, compensatory damages, and punitive damages in addition to back pay, future pay, past pecuniary losses, costs, and attorney fees.

For years the business and insurance lobby in Texas claimed that they needed a “loser pay” statute in order to recover their legal fees and expenses when they were subjected to frivolous lawsuits. In 2003 the Texas legislature passed Chapter 42 of the Civil Practice and Remedies Code which includes a loser pay provision. Section 42.002(c) provides that only the defendant may invoke the loser pay provisions but that once invoked by the defendant the loser pay provision was available to either party. Not once since its passage have I seen a defendant invoke the Chapter 42 loser pay statute.

It seems that the defendants are not interested in a loser pay provision if it applies equally to both frivolous claims as well as frivolous defenses. The reality of personal injury litigation is that the insurance companies use the delay and expense of litigation in an attempt the starve the injured claimants, who are usually out of work, burdened by mounting medical bills, and often without transportation, into accepting a substandard settlement. It would not be advantageous for the insurance companies to delay the payment of legitimate claims if that delay was going to come with the obligation of paying the claimant’s legal fees and expenses.

When the insurance and business world lobbied for a loser pay statute what they sought was not the shifting of the burden of legal fees and expenses from the prevailing party to the party which caused the protracted litigation but rather an unfair, one sided advantage over injury victims. The fact that the defendants refuse to invoke the loser pay provisions of Chapter 42 because those provisions would then be applied to both parties underscores the defendants’ abuse of the litigation process and the need for the provisions of Chapter 42 to be available to be invoked by either the plaintiff or the defendant.