Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Disability

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Fifth Circuit Holds That Telecommuting Not a Reasonable Accommodation Because Regular In-Office Work Was Essential Job Function of Litigation Attorney

Posted in Case Summaries, Disability, Reasonable Accommodation
In Credeur v. State of Louisiana, an attorney working as a litigator with the attorney general’s office experienced health issues related to a kidney transplant. The Office of the Attorney General allowed Credeur to work from home temporarily while she was recovering from her transplant surgery. After several months of telecommuting, the Office of the… Continue Reading

Everyday is Take Your Dog to Work Day: EEOC Sues Employer Alleging Ban on Service Dog at Workplace

Posted in Disability, Discrimination, News & Commentary
One of the consequences of the Americans with Disabilities Amendment Act’s expanded definition of disability is that employers are facing a much larger number of accommodation requests and therefore a greater number of potential accommodations. Anecdotally, I have seen a sharp uptick in the number of employees asking employers to bring animals to the workplace claiming… Continue Reading

EEOC Publishes Resource on Employer-Provided Leave and the Americans with Disabilities Act

Posted in Disability, Leave of Absence, News & Commentary
This week the EEOC published a resource document intended to provide guidance on providing disabled employees with leave of absence as a reasonable accommodation. According to the Commission, [It] continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA.  For example, some employers may not know… Continue Reading

Fifth Circuit Resolves Intra-Circuit Split on Important ADA Issue

Posted in Case Summaries, Disability, Discrimination
Last month the Fifth Circuit resolved an intra-Circuit split on the appropriate prima face case that should be used in a discrimination case under the Americans with Disabilities Act.  In EEOC v. LHC Group, Inc., the EEOC brought suit on behalf of a home health field nurse who was terminated after she was rendered unable… Continue Reading

Broad Definition of Disability Can Provide Some Advantages for Employers in Disability Suits

Posted in Disability, News & Commentary
The Americans with Disabilities Amendments Act greatly expanded the definition of what constitutes a disability.  Consequently, it increased the number of employees who qualify for the protections of the Act (or as I often lament, we’re all disabled).  A positive consequence of this broad definition of disability for defendant-employers is the increased likelihood that in any disability discrimination case, the… Continue Reading

Fifth Circuit Holds that Volunteer Firefighter is not an “Employee” for Purposes of Title VII

Posted in Case Summaries, Disability, Discrimination, Harassment, Retaliation
In an issue of first impression in this Fifth Circuit, the Court held that a volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim. The case arose from a suit filed by a former firefighter for the Livingston Parish… Continue Reading

Fifth Circuit Interprets Ministerial Exception Broadly in Case of First Impression

Posted in Age, Case Summaries, Disability, Religion
Last term the U.S. Supreme Court confirmed the existence of the ministerial exception to many of the federal employment discrimination laws. This week, the Fifth Circuit took up the application of the ministerial exception for the first time since the Supreme Court’s opinion in Hosanna-Tabor and applied the exception broadly. Philip Cannata was the Music Director… Continue Reading

Has the Expanded Definition of Disability under the ADAA Gone Too Far?

Posted in Disability, News & Commentary
Daniel Schwartz at the Connecticut Employment Law Blog has an interesting post today about the effect the American Psychiatric Association’s proposed changes the Diagnostic & Statistical Manual could have to the Connecticut body of disability discrimination law.  While Connecticut is unique, according to Schwartz, in its definition of disability and expressly includes mental conditions listed in… Continue Reading

Large Texas Employer Announces it Will Not Consider Applicants for Employment Who Use Products with Nicotine

Posted in Disability, Human Resources, News & Commentary
One of North Texas’ largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes).  Baylor Health Care Systems announced its new policy on the careers page of its website stating: As a health care… Continue Reading

Transitioning HR Professionals –Look to Verizon for Employment

Posted in Disability, Discrimination, Human Resources
Verizon agreed to pay $20 million dollars and ceasing using its no-fault attendance policy for  absences caused by impairments qualifying as disabilities under the ADAAA.  Whatever the size of Verizon’s Human Resources Department, it looks like its going to need to be a lot larger. As part of the settlement with the EEOC, Verizon agreed that… Continue Reading

EEOC Takes Hog-Like Approach on Attendance as Essential Job Function

Posted in Disability, Discrimination, Human Resources, Reasonable Accommodation
There’s an old saying in rural America that "pigs get fat and hogs get slaughtered."  We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy.  In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions.  My fellow bloggers, Work Blawg… Continue Reading

EEOC Holds Hearing on Leave of Absence as Reasonable Accommodation

Posted in Disability, Leave of Absence, Reasonable Accommodation
This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees.  The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation.  For… Continue Reading

Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?

Posted in Disability, Discrimination
There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments… Continue Reading

El Paso EEOC Sues Starbucks over Height Challenged Barista

Posted in Disability, Discrimination
In a suit you don’t see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC’s Complaint: Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life… Continue Reading

New ADA Regulations Take Effect Next Week –Are you ready?

Posted in Disability, Human Resources
The EEOC published its final regulations interpreting the ADA Amendments Act on March 25, 2011.  Consequently, those regulations become effective on March 24, 2011.  The effect of the Act and these regulations is that large numbers of employees will qualify as disabled under the law thereby triggering an increased number of applicants and employees who… Continue Reading

El Paso Court of Appeals Holds that Employer May Use Mandamus Petition to Challenge Trial Court’s Jurisdiction Where Employee’s Charge of Discrimination was not Timely

Posted in Case Summaries, Disability, Discrimination, Harassment
The El Paso Court of Appeals held this week that a Texas employer can use mandamus petition to challenge a trial court’s jurisdiction where the plaintiff-employee failed to file his charge of discrimination timely.  A link to the opinion is here. … Continue Reading

EEOC Changes Tactics in Enforcing “Pregnancy” Discrimination Laws

Posted in Disability, Discrimination, Workers' Compensation
The EEOC recently brought suit against the country’s largest home builder on behalf of a pregnant employee who was denied a period of unpaid leave in addition to the maximum permitted under the employer’s policies.  What is unique about this suit is that the EEOC brought the suit under the Americans with Disabilities Act rather than the Pregnancy… Continue Reading

EEOC Publishes Proposed Regulations Designed to Implement Amendments to the Americans with Disabilities Act

Posted in Disability
The EEOC recently published proposed regulations designed to implement provisions of the ADA Amendments Act (ADAAA). The proposed regulations incorporate significant changes to the law and provide numerous illustrative examples. A full copy of the proposed regulations can be accessed here.  The following sections summarize some of the significant points. Presumptively Disabling Impairments The proposed regulations provide… Continue Reading

Texas Expands Employment Rights for Disabled

Posted in Disability, Human Resources, Legislation
This legislative session the Texas Legislature passed, and the Governor signed, amendments that significantly expands the scope of the Texas Commission on Human Rights Act ("Act") as it relates to individuals with disabilities. The amendment provides that: The definition of "disability" is to be broadly construed to the maximum extent possible and shall include impairments that are episodic or in… Continue Reading

Being Chronically Tired May Qualify as a Disability in Texas

Posted in Disability, Discrimination, Reasonable Accommodation
A federal appellate court with jurisdiction over Texas held that chronic fatigue syndrome (CFS) may qualify as a disability under the Americans with Disabilities Act. According to the Centers for Disease Control, CFS is characterized by symptoms including weakness, muscle pain, impaired memory and/or mental concentration, insomnia, and post-exertional fatigue lasting more than 24 hours.  There is no known diagnostic… Continue Reading

E-Cigarettes in the Workplace: Can and Should Employers Ban Them?

Posted in Disability, Human Resources
A recent Wall Street Journal article described the controversy that e-cigarettes are creating.  As Lauren Etter writes, [E]lectronic cigarettes, [are] the smokeless nicotine products embraced by a growing number of people trying to kick the habit or avoid bans on smoking in public.  Electronic cigarettes typically consist of a metal tube containing an atomizer, a battery and a cartridge filled… Continue Reading