Texas is still a long way from becoming California when it comes to employment law, and no one expects the Republican dominated Texas legislature to follow the recent trend of other state legislatures (e.g., New York, Washington, Maryland) in restricting employers from arbitrating claims of sexual harassment. The employment laws that are likely to be passed by the current Texas legislature are laws undermining the rights of Texas municipalities (e.g., Austin) to require sick leave pay.
When it comes to the courts, however, the balance may be shifting in favor of employees. Earlier this month, a recently elected district judge in Houston denied an employer’s motion to compel arbitration of a former employee’s sexual harassment claim on grounds that such an arbitration provision violates public policy. For support, the Court cited an open letter signed by fifty-six attorneys general — including Texas’ own, Ken Paxton — that highlighted concerns about the secrecy requirements of arbitration clauses. That letter included the line that such clauses “may then prevent other persons similarly situated from learning of the harassment claims so that they, too, might pursue relief.”
Is this single Houston case an anomaly or a harbinger of things to come? Considering that the Democrats now control nearly every judgeship in Texas’ largest urban areas (except Fort Worth), as well as many of the seats in the intermediate courts that serve those urban areas, it is likely that we will see more challenges of established judicial precedents in the Lone Star State, although it bears noting that the Texas Supreme Court is still controlled by Republicans. Additionally, challenges to Texas arbitration agreements on public policy grounds are likely to fail if the agreement is enforceable under the Federal Arbitration Act.
Even if there are no substantive changes to Texas employment law, the general consensus among employment lawyers on both sides of the bar is that the new judges will tend to be slightly more plaintiff-friendly than their predecessors, resulting in fewer summary judgments being granted and a few more cases going to trial, but that most of the new judges — like their predecessors — will work hard at being fair to all parties. I tend to agree.