Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

I wrote back in April 2010 that I thought the Houston Court of Appeals decision in Prarie View A&M v. Chatha applying the federal Lilly Ledbetter Fair Pay Act (“Ledbetter Act”) to claims arising under the Texas Commission on Human Rights Act (TCHRA) was wrongly decided. Last month the Supreme Court of Texas agreed with me and reversed the decision.

In Prarie View A&M v. Chatha, Dr. Chatha began her employment with the University in 1987 as an associate professor. In 2003, she applied for a promotion to full professor. Initially denied the promotion, Dr. Chatha was eventually promoted to in 2004. At that time, she complained that her salary was inequitable but was told that there were no funds available for a salary adjustment. Two years later, Dr. Chatha filed a charge of discrimination with the EEOC and Texas Workforce Commission alleging race and nationality-based pay discrimination. Under state law, a charge of discrimination must be filed within 180 days of the discriminatory act’s occurrence. At issue was when Dr. Chatha’s pay discrimination claim “occurred”. Did the claim occur when she was initially advised of the decision in which case her claim was untimely or was each subsequent paycheck she received a separate, new act of discrimination rendering her charge of discrimination timely? 

The Houston Court of Appeals held that Dr. Chatha’s claim was timely reasoning that the federal Ledbetter Act applied to pay discrimination claims filed under state law because one of the general provisions of the TCHRA was to execute the policies of Title VII including its amendments and two federal district courts opinions had applied the Ledbetter Act to state law claims.

The Supreme Court of Texas reversed the court of appeals. The Court noted that while the federal and state laws are largely analogous and have historically be interpreted consistently, nothing required it to interpret state law identically with federal law. Additionally, the Court found no support in the plain language of the statute or its legislative history that the Texas Legislature intended amendments to Title VII be automatically incorporated into the TCHRA. Consequently, the Supreme Court held that the that Ledbetter Act did not apply to TCHRA claims and that pay discrimination claims brought under state law must generally be brought within 180 days of the date the claimant is advised of the compensation decision.

This is a more pyric victory for Texas employers than it is a meaningful one. Texas plaintiffs who desire to bring a pay discrimination claim over a decision that is older than 180 days still have a recourse. They can file those claims under federal law and avail themselves of the Ledbetter Act’s more forgiving definition of when a claim “occurs”. 

A full copy of Prarie View A&M v. Chatha is available here.

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Last week the U.S. Supreme Court ended its 2011-12 Term.  Here are summaries of the labor and employment cases decided this term.

Hosanna-Taylor Evangelical Lutheran Church and School v. EEOC, (No. 10-553) (holding that teacher at religious school qualified as a "minister" within the meaning of the ministerial exception to Title VII and therefore First Amendment barred her employment discrimination claim against her religious employer).

Christopher v. SmithKiline Beecham Corp., (No. 11-204) (holding that pharmaceutical representatives who visit physician offices to encourage physicians to prescribe employer's products qualify as outside sales representatives rejecting DOL interpretation of its own regulation).

Coleman v. Court of Appeals for Maryland (No. 10-1016) (holding that the self-care provisions of the FMLA are inapplicable to state governmental employers under the 11th Amendment and sovereign immunity).

Knox v. Service Employees International Union, Local 100, (No. 10-1121) (holding that First Amendment does not allow public-sector union to impose special assessment on members without Hudson notice and affirmative consent of union members being assessed). 

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The Texas Supreme Court held that an age discrimination plaintiff is never entitled to an inference of age discrimination at the prima facie case where the employee's replacement is older than plaintiff-employee. In that situation, the plaintiff must establish a prima facie case through direct evidence of age discrimination.

Gloria Garcia (age 48) was terminated from her school district employment after twenty-seven years.  She was replaced by a female employee of the same national origin and who was three years older than Garcia.  She sued alleging that she was retaliated against for participating in protected activities and discriminated against based on her race, national origin, age and gender. The trial court dismissed Garcia's claims because she could not prove she was replaced by an employee outside her protected categories.  

The Texas Supreme Court granted review in the case to determine whether a plaintiff can establish a prima facie case of age discrimination when undisputed evidence shows that the plaintiff was replaced by someone older.   The answer, according to the court, was plainly, no.

The reasoning for the Supreme Court's holding is best summarized in considering the following passage referring the U.S. Supreme Court's opinion in O'Conner v. Consol. Coin Caterers Corp., (which held that an age discrimination plaintiff needs to show replacement by someone not insubstantially younger than the plaintiff:

If an inference of discrimination cannot be draw from replacement by an 'insignificantly younger' worker, then one certainly cannot be draw from replacement by an older worker.  That is the situation confronting us today, and that is the reason we hold that a plaintiff in Garcia's situation cannot make out a prima facie case of age discrimination.

The holding may have limited applicability in non-replacement cases (i.e., reduction in force cases where the plaintiff is not replaced); cases where the employee alleges that work rules were applied more harshly to older workers than younger workers; or cases where the plaintiff has direct evidence of age discrimination.  Notwithstanding the opinion's limitations, in age discrimination cases where the replacement employee is older than the plaintiff, and in the absence of direct evidence, Garcia strongly supports the dismissal of the age discrimination claim.

The result of this holding is that plaintiffs wanting to assert age discrimination claims in cases where the plaintiff was replaced by an older worker will likely elect to pursue those claims in federal court under the Age Discrimination in Employment Act rather than under state law.  Moreover, Garcia gives support to the argument that other TCHRA discrimination claims should be dismissed where the plaintiff is replaced by someone in the the same protected category.  The trial court dismissed Garcia's race, sex and national origin claims on that basis and Garcia did not appeal those conclusions.  The logic of the Court's opinion that an absence of discrimination exists when the plaintiff's replacement is older than the plaintiff seems to apply equally to other kinds of discrimination claims where the replacement employee is also a member of the plaintiff's protected category. Time will tell if the courts of appeals will apply this argument outside the age discrimination context.

Follow me on Twitter @RussellCawyer.

Majority opinion in Mission Consol. Indep. Sch. Dist.

Dissenting opinion in Mission Consol. Indep. Sch. Dist.

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Prevailing plaintiffs in employment discrimination, harassment and retaliation cases can recover attorney's fees their attorney's incur in prosecuting those claims.  In many instances the attorney's fees sought can exceed the monetary relief the plaintiff obtains and can act as a serious impediment to prompt settlement. 

Since most of these cases are done on a contingency fee basis (i.e., the employee's attorney only gets paid if the plaintiff recovers either through settlement or trial), there is wide disparity of the type of records plaintiff employment lawyers keep.  The Supreme Court of Texas recently clarified that in order for an attorney to recover fees under the lodestar method, at a minimum, the attorney must present documentation showing: 1) the services performed; 2) the identity of the person performing the services; 3) the amount of time spent by the person; 4) the hourly rate of the person; 5) when the services were performed; and 6) how much time was spent performing the services.

This result will not seem shocking or surprising practitioners used to federal court practice where lodestar fees and contemporaneous time records are the norm; however, it is good to see the Texas Supreme Court formally adopt this practice for proceedings under state law in state court.

A copy of the Court's opinion can be downloaded here.

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Yesterday I hosted a webinar on Investigating Employee Complaints in the 21st Century:  Comprehensive Investigations of Complaints of Discrimination, Harassment and Misconduct.  There was a great turnout and many good questions posed from the participants.  If you missed the presentation, you can watch the archive here.

I am actively seeking suggestions for interesting human resource or employment law topics for the next in our series of webinars scheduled for early this summer.  Please leave your suggestions in the comments.

Follow me on Twitter @RussellCawyer.

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Yesterday, the U.S. Supreme Court unanimouslyy held that the ministerial exception bars a federal employment discrimination suit brought by a teacher challenging her church-employer's decision to terminate her employment.  While this holding is limited to religious affiliated employers, it firmly establishes the ministerial exception as a bar to certain employment discrimination claims against religious organizations.

Plaintiff Cheryl Perich was a teacher at the Hosanna-Tabor Evangelical Lutheran School --a school affiliated with the Lutheran Church.  The school had two kinds of teachers --lay and called teachers.  Called teachers were regarding as having been drawn to their vocation by God and had to complete certain religious academic requirements and become "Commissioned" in the Lutheran faith.  Lay teachers were not required to undergo the religious training or ordination requirements.  Moreover, lay teachers were only used when called teachers were unavailable.  Perich stated out as a lay teacher but was asked to, and agreed to become a called teacher.

Perich subsequently developed narcolepsy during the 2004-05 school year and took disability leave.  The school contracted with a substitute teacher to complete the academic year.  When Perich wanted to return to work, the school declined because it had replaced her position with the substitute.  Perich was offered  a paid continuation of her health insurance in return for her resignation. She refused the offer and instead reported to work.  When asked to leave, she refused to leave until she was provided a note confirming she had reported to work. She was later told by the principal that she would likely be fired to which she responded that she had spoken to an attorney and intended to assert her legal rights.  The school terminated her employment for insubordination and disruptive behavior as well as the damaged she allegedly caused to her relationship with the school by threatening to take legal action.

Perich filed a charge of disability discrimination and the EEOC issued a cause finding and filed suit on her behalf against the school claiming that she was fired in retaliation for threatening to file an ADA lawsuit.  The church and school defended against the disability claim arguing that the First Amendment's Establishment Clause's (i.e., the provision that precludes the government from passing any law establishing a religion or interfering with the free exercise of religion) ministerial exception prohibited the application of the ADA claim against it because it would undermine the church's decision in who become and remains a minister of the church.  The EEOC argued that the Court should not recognize a ministerial exception.  The Court rejected the Commission's arguments holding that to do so would effectively allow the government decide for the church who could act on its behalf as a minister.

Significant aspects of the case included that the teacher was ordained by the church as a minister.   While most of the duties she performed were similar to non-ordained teachers, she also taught religion class, led students in daily prayer and devotional exercises, took her students to a weekly school-wide chapel service and led the chapel service twice a year.  Both the church/school and the teacher held the teacher out as a minister with a role distinct from most of its members; her role required a significant degree of religious training and a formal process of commissioning and that her job duties reflected a role in conveying the church's message and carrying out its mission.  Because she qualified as a minister, the Court concluded that the EEOC's action challenging the decision to terminate her employment would be tantamount to dictating to the church who could and could not be a minister on the church's behalf.  As such, the ADA claim was barred by the First Amendment's Establishment Clause and ministerial exception. 

The quick takeaways from the case are:

• Ministerial exception exists;
• It only applies to religious groups and organizations (although what qualifies as a religious group or organization is unclear);
• The ministerial exception does not only protect religious organizations from suits alleging religious discrimination;
• Ministerial exception applies to internal decisions of the religious organization in deciding who to select or retain as a minister;
• Ministerial exception is not limited to the head of a religious congregation but it is unclear how far the exception can be extended;
• Holding is limited to cases where minister brings an employment discrimination claim challenging a church's decision to fire her.

It will be left to the lower court's to flesh out the outer boundaries of the ministerial exception to determine who qualifies as a minister and what decisions can be said to interfere with the religious body's free exercise of religion.

You can download a full copy of the Court's opinion here.

Follow me on Twitter @RussellCawyer.

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On January 25, 2012, at 12:00 p.m. I'll be speaking on a panel titled "Title VII Litigation: Persistent Evidentiary Challenges."  The webinar will cover common evidentiary issues that employment lawyers who try discrimination, retaliation and harassment claims face including:

• Admission and exclusion of "me too” evidence;
• “Other supervisor” evidence, including Cat’s Paw Liability case developments;
• After-acquired evidence;
• Character evidence;
• Evidence from social media websites;
• “Stray remarks” doctrine;
• “Similarly situated” defense; and
• “Better qualified” defense

Readers and subscribers of the Texas Employment Law Update (RSS-feed and e-mail subscriptions) receive a 50 percent discount on registration.  To get more information on this webinar or to register using the discount, click here.

Follow me on Twitter @RussellCawyer.

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Last week I was in Seattle attending the ABA's 5th Annual Labor and Employment Law Conference.  While there have been a number of interesting and informative sessions, I wanted pass along an interesting demonstration that was done by Dr. Anthony Greenwald to demonstrate implicit bias (i.e., the internal, subconscious stereotypes we all allegedly have from our past experiences).

In large scale class actions, lawyers representing the classes have attempted to show systemic discrimination in corporations using, in part, implicit bias science.  Implicit bias science attempts to measure the extent to which individuals have implicit bias and how such bias might be predictive of discrimination.  Dr. Greenwald is the developer of the Implicit Association Test.  The test is designed to measure implicit attitudes people may harbor but are unaware of or would otherwise be unwilling to admit.

For example, in the test demonstrated last week, the group was shown a series of names and asked to answer whether the names were male or female names.  Response times were measured and the quicker the response time, the easier a person's brain has in processing a response.  Next, the group was shown a series of job titles and asked categorize each as being a leadership position or non-leadership position (e.g., Boss, Supervisor, Leader, Executive, Assistant, Co-worker etc).  After measuring response times, the group's response times tended to show that male names more closely correlated with leadership positions and female names correlated with non-leadership positions.  This, the test administrator believes, shows that the implicit bias of our group was to associates leadership job titles with males and lower job titles with females.  Dr. Greenwald observed that he has measured implicit bias in many areas such race, gender, appearance (obesity) and age; all useful things in employment discrimination cases --if valid.

While I didn't come away from the demonstration with the belief that the IAT is useful evidence to prove discrimination or predictive of discriminatory behavior, it was interesting.  Do you have implicit bias?  Dr. Greenwald's computer based test is available on-line and you can take it here (We took the Gender Career IAT).  What do you think?  Are you more likely to discriminate because your implicit bias?

Follow me on Twitter @RussellCawyer.

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Last week the Supreme Court of Texas granted a Petition for Review to hear the case of Mission Independent School District v. Garcia.  While the petition for review has three issues (issue four was not challenged by the respondent), only one is relevant to private employers.  The school district argues for a bright line rule that if the plaintiff-employee is replaced by someone older than he is, there can be no state age discrimination claim as a matter of law.  As worded by the School District, whether a plaintiff can establish a prima facie case of age discrimination when plaintiff-employee's replacement is older than the plaintiff.

In Garcia, Ms. Garcia worked for the School District for 27 years.  She sued her former employer (and the individual supervisor) for a variety of alleged discrimination (i.e., the kitchen sink approach) including age discrimination.  The School District challenged Garcia's claim through a plea to the jurisdiction which entitles a governmental employer to an interlocutory appeal (i.e., during the pendency of the case rather than after final judgment).  It is in this procedural posture that the case reached the Supreme Court of Texas.  The substance of the School District's argument is that because Garcia's replacement was three years older than she was, she cannot make out a prima facie case of age discrimination as a matter of law. The School District's argument seems logical, but Courts rarely like to adopt bright-line rules in employment discrimination cases.  The case is scheduled for oral argument on January 10, 2012 and a decision is expected before the end of September.

Follow me on Twitter @RussellCawyer.

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Prompt and thorough investigations of complaints of harassment and discrimination can provide solid legal defenses to employee lawsuits.  Even where there may not be a technical, legal defense (e.g., supervisory harassment resulting in an adverse employment action), investigating employee complaints of inappropriate behavior can paint the employer in a favorable light and is just a good business practice for employers concerned about providing a professional workplace. 

One of the first choices an employer receiving an employee complaint of discrimination, harassment or even misconduct, has to make is who will investigate the complaint on behalf of the company.  Complaints do not necessarily have to be investigated by lawyers or even those external to the company.  However, there are certain qualities an employer should consider in selecting the investigator (not all qualities are necessarily required for a prompt and thorough investigation).

• Experienced --someone with prior human resources experience and that has conduct prior investigations of discrimination, harassment, retaliation or workplace misconduct;
• Unbiased and objective --someone that is neither accused of misconduct or who reports to or is the direct organizational chain of the the person being complained about;
• Articulate --an individual who is well-spoken and makes both good verbal and physical appearance.  This will be the company's spokesperson at any trial where the company has to describe and defend its investigation and any remedial measures taken as a result of the investigation;
• Knowledgeable --person should be knowledgeable of the subject matters being investigated as well as the company policies that apply to the investigation and the misconduct alleged;
• Approachable --someone that the complaining party, witnesses and the person being complained about will open up  to.  For example, in the investigation of a sensitive sexual harassment investigation, it may be (but is not required to be) that a person who is the same gender as the person making the complaint may be the proper choice.
• Available --the individuals selected needs to have the time devoted the conduct and conclude the investigation promptly.

As prompt and thorough investigation can be an effective defense to a discrimination, harassment or retaliation lawsuits.  The best defense starts with selecting the right quarterback to run the investigation.

Follow me on Twitter @RussellCawyer.

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This week the Fifth Circuit held that a cause of action exists for hostile work environment under the ADEA –the first such express holding in the Circuit.  In Dediol v. Best Chevrolet, the plaintiff filed a hostile work environment and constructive discharge claim against the employer.

During the brief two months of employment, Dediol claimed that his direct supervisor repeated referred to him by profane, derogatory names invoking his age; made offensive remarks about his religious beliefs; threatened him both economically with the loss of his job and with physical threats of violence and intimidation. When Dediol’s requested transfer to another department was denied by his supervisor, he told the company’s management that he could no longer take the abuse and ceased reporting for work. The employer terminated his employment for job abandonment. He filed a charge of discrimination; received a right to sue letter and file a hostile work environment suit based on age, religion, harassment and constructive discharge.

In the first holding of its kind in the Fifth Circuit, the panel held that a plaintiff’s hostile work environment claim based on age discrimination under the ADEA could be advanced in court. In setting out the parameters for such claim, the Court borrowed liberally from Title VII hostile work environment jurisprudence.   The court held that the plaintiff must show that 1) he is over age 40; 2) the employee was subject to harassment, either through works or actions, based on age; 3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and 4) there is some basis for liability on the part of the employer. In determining whether the harassment is intimidating, hostile or offensive, the conduct must be both objectively and subjectively offensive.

Having concluded that an ADEA hostile work environment based on age exists in this Circuit, the Court examined the record and concluded that genuine factual disputes existed as to each of Dediol’s causes of action. The court reversed the trial court and sent the case back for further consideration –including, potentially, a full trial on the merits.

You can download the complete opinion here.

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In Texas, employees and employers are entitled to a telephone hearing before a hearing officer if either party disagrees with an initial determination issued by the Commission in unemployment benefit and Texas Pay Day Act claims.  There are some occasions, however, where an employer may consider foregoing these telephone conferences --even if it means losing the unemployment benefit claim.

Telephone hearings before hearing officers are conducted under oath and are recorded.  This constitute sworn testimony that will be binding on the parties in subequent proceedings.  Some attorneys representing employees use these telephone hearings to conduct discovery on potential discrimination, retaliation, harassment or wage and hour claims they may be thinking about filing.  If you appear for an administrative telephonic appeals hearing without your labor and employment counsel and the employee on the other side has a lawyer; think long and hard about whether you want to participate further in the proceeding without advice of counsel.  You might win the battle (i.e., the telephone hearing) but lose the war by having the testimony offered at the hearing used against the employer in a more significant lawsuit with more exposure.  Sometimes it may be better to just hang up and not oppose the unemployment benefit claim.

Follow me on Twitter @RussellCawyer.

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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 before it would charge ANY absence against an employee under its no-fault attendance policy, it would determine whether:

• the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA;
• the employee's absence was caused by a disability;
• the employee, or someone else on the employee's behalf, requested a period of time off from work due to a disability;
• the employee's absence have been unreasonably unpredictable, repeated, frequent or chronic;
• the employee's absences are expected to be unreasonably unpredictable, repeated, frequent or chronic;
• Verizon could determine, from the request by or on behalf of the employee or through an interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and
• the employee's need for time off from work poses a significant difficulty or expense for the business.

Let me say this again; Verizon agreed that it would investigate every single absence before it applies that absence against the employee under its attendance policy.  Don't believe me, here is the link to the consent decree entered in the case.  (Consent Decree).

So, if you are a Human Resources professional in transition or looking for a transition, consider applying at Verizon; its going to need the additional help.

Follow me on Twitter @RussellCawyer

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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 and Employment and Labor Insider posts last week about the EEOC's apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies.  The issues comes up in discussions of Verizon's record-setting $20 million settlement with the EEOC over its no-fault attendance policy.  As Robin Shea points describes the dispute that was settled:

The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were 'disabilities' within the meaning of the ADA.  It does not appear that medical leaves were at issue.  Exempting ADA conditions from no-fault attendance policies is a huge deal.

With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability.  Because the ADAAA now renders everyone disabled, the EEOC's position is troubling.  It suggests that the EEOC believes that attendance is not an essential function of most jobs. 

The problem with the EEOC's position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation.   Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity.  However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions.  Most courts have held that attendance is an implicit, essential job function of most employment.  Consequently, the EEOC's position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling.  If accepted by the Courts, the EEOC's position would require employer's to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability. 

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Employment Practices Liability Insurance, or EPLI, is business insurance an employer can purchase that will provide protection from losses caused by certain employment disputes with current or former employees. EPLI is in addition to commercial general liability or umbrella policies that normally contain exclusions for most employment claims.

EPLI normally covers the employer, its employees and executives for losses (including defense costs) attributed to claims for discrimination, harassment and retaliation; wrongful discharge; defamation (i.e., libel and slander); invasion of privacy and false imprisonment.  It normally does not include coverage for wage and hour claims (FLSA); claims for breach of contact or claims by independent contractors; claims arising under WARN, NLRA, OSHA, ERISA, COBRA and some ADA claims. It will also not include coverage for attorney’s fees associated with claims brought by the employer against the former employee such as counter claims (e.g., breach of contract, theft of trade secrets). Depending on the state where the claim is made, punitive damages may also be excluded or uninsurable.

Defense costs, including attorney’s fees, are often the largest expense an employer faces in defending an employment claim brought by a former employee. Even a frivolous claim or a claim the employer eventually wins is expensive to defend. These fees and costs are usually covered by EPLI but have the effect of decreasing the amount of coverage available to pay a judgment or settlement. Another potential limitation of EPLI coverage is that the insurance company normally gets to select the defense counsel that will defend the employer for covered claims. If selection of or use of particular lawyer is important (i.e., your normal labor and employment counsel), the employer should have included in its policy a provision that gives it the right to select defense counsel. 

EPLI policies are normally claims made policies. A "claims made" policy means that it will only protect against losses that occurred during the policy period and that are reported within a short period following the end of the policy period. Because an employer may learn of a potential claim until months after the employee leaves employment (and potentially after the expiration of the policy period), the employer may want to consider purchasing additional coverage that will extend the protection the employer has for up to a year after the end of the policy period (aka tail coverage).  Failure to timely make a claim and put the insurance carrier on notice of the potential claim can be grounds for the carrier to deny the claim.

EPLI can also be expensive. Rates depend on a variety of factors including the location(s) where the employer has employees; the number of employees; the employer turnover rate; and prior history of employment litigation among others. However, EPLI can be an important part of many business' overall risk avoidance or minimization strategy. If you have questions about whether EPLI is right for your business, contact your insurance broker or your labor and employment attorney.  

Follow me on Twitter @RussellCawyer

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In an issue of first impression in the Fifth Circuit, the U.S. Court of Appeals holds that Title VII's damages cap apply on a "per party" basis rather than on "per claim."  In Black v. Pan American, the Plaintiff, Carleen Black, prevailed on her Title VII and TCHRA claims of sex discrimination and retaliation.  The jury awarded Black $3.45M in back pay and compensatory damages.  Prior to entry of judgment, the trial court reduced the jury's award to $500,000 representing $300,000 in back pay and $200,000 in compensatory and punitive damages.

On appeal, plaintiff argued that the Title VII damage caps ($200,000 in this case based on the size of the employer) should be applied on a "per claim" rather than on a "per party" basis.  If the Plaintiff's argument was accepted, her judgment would include $600,000 for capped compensatory and punitive damages rather than $200,000 because she prevailed on three capped claims.  In holding that Title VII's damage caps apply "per party" rather than "per claim," the Court first noted that the Sixth, Seventh, Tenth and D.C. Courts of Appeals had held that caps apply per party.  The Court then examined the statute and concluded that "the plain language of Section 1981a(b)'s cap applies to each party in an action." Consequently, the Court affirmed the trial court's judgment that capped Black's compensatory and punitive damages at $200,000.

You can download a complete copy of the Court's opinion in Black v. Pan American Laboratories, LLC here.

Follow me on Twitter @RussellCawyer.

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The Fifth Circuit held today that a spouse of a successful Title VII plaintiff cannot maintain a legal claim for loss of consortium (i.e., loss of spousal services) under state and federal law.  In Barker, Tracey Barker was a civilian worker employed by Halliburton (aka KBR).  She claimed she was subjected to sexual harassment, retaliation and various other torts while working for Halliburton in Iraq.  She and her husband filed suit in federal district court but the wife's claims were compelled to arbitration and the husband's claims were abated pending the arbitration. 

Ms. Barker won $1.23 million from the arbitrator (reduced from $2.93M) on the Title VII claims but the tort claims for assault, battery, intentional infliction of emotional distress and false imprisonment were dismissed.  (Note:  Who says arbitrators don't render large awards in employment cases?).  Mr. Barker's claims were dismissed by the federal district court because it held he could not maintain a claim that was solely derivative of his wife's tort claims where those tort claims had been dismissed by the arbitrator and the only successful claim was under Title VII.

The Fifth Circuit Court of Appeals affirmed reasoning that:

Under Texas law, a loss of consortium claim is derivative of the tortfeasor's liability to the physically injured spouse.  Thus, when a husband asserts a loss of consortium claim, he must establish that the tortfeasor was liable for the tort claim of his physically injured wife.  Galen Barker's argument fails for two reasons.  First, Galen Barker's claim must derive from a successful tort claim.  Therefore, in Texas, a loss of consortium claim may not derive from a spouse's federal civil rights claim.  The second reason Galen Barker's argument fails is because the arbitrator dismissed Tracey Barker's tort claims.  Galen Barker's loss of consortium claim must derive from his wife's successful tort claim for her physical injuries.  That is not possible here because the arbitrator dismissed Tracey Barker's tort claims with prejudice.

Consequently, if a Texas employer is faced with an employee-spouse's loss of consortium claim that derive solely from violations of civil rights laws, the employer should consider asking the court to dismiss the spouse's claims. You can download the complete opinion of Barker v. Halliburton here.

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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 that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA.  Today I read about a potential consequence I had not been able to imagine. 

Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality."  This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)?  I think the answer, despite what Congress intended, is probably "yes".

First, is hypersexuality or severe anxiety a disability?  The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders.  Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V.  (check) 

Second, does it substantially affect a major life activity?  The EEOC's regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively.  Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems.  Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee's ability to think or concentrate?  (check)

Third, are reasonable break times to relieve stress reasonable?  Unless the employer can show undue hardship, probably so.  Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals.  Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship.  (check).

Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission.  Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer.  This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability.  Did Congress go too far when it passed the ADAAA?

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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 activities of, including but not limited to, reaching, lifting, and performing manual tasks.  Charging Party was hired by the [Starbucks] as a barista, a customer service position.  The job description for the barista position stated that no prior experience was required. . .  On or about July 30, 2009, Charging Party requested the use of a stool and/or small step-ladder as a reasonable accommodation to enable her to perform the essential functions of her job.  With reasonable accommodation, [she] would have been able to perform the essential functions of her job; to operate the cash register and prepare beverages.

After the Charging Party requested a reasonable accommodation, [Starbucks] failed or refused to engage in the interactive process and failed or refused to provide the Charging Party with a reasonable accommodation.  On or about July 30, 2009, [Starbucks] terminated Charging Party's employment, claiming that she would be a danger to customers and employees.

In my quick, and admittedly non-exhaustive research while writing this post, individuals suffering from achondroplastic dwarfism have not fared well in suits filed under the ADA.  However, with the relaxed standard for qualifying for "disabled" status under the Americans with Disabilities Amendments Act and its accompanying regulations (see post), the EEOC may have a stronger hand in this case if it can overcome Starbucks apparent "direct threat" defense.

You can review a copy of the EEOC's complaint here.

UPDATE:  On August 16, 2011, Starbuck entered a Consent Decree with the EEOC where it agreed to pay $75,000 to settle the charges of discrimination.  You can see all of the terms of the Consent Decree here.

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In today's Supreme Court of Texas orders, the Court held that the State of Texas (including its political subdivisions such as counties) is immune from worker's compensation retaliation suits.  You can read a full copy of the Court's opinion in Travis Central Appraisal District v. Norman here.

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In an issue of first impression, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court hearing cases from Texas), held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides no cause of action for a hostile work environment that is created because of a service member's military service. 

The Plaintiffs, in Carder v. Continental Airlines, Inc.,  alleged that Continental created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service through a continuous pattern of harassment.  They further alleged that "Continental has . . .  chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations."  Examples cited in the suit included: 

• placing onerous restrictions on taking military leave and arbitrarily attempting to cancel military leave;
• making derisive and derogatory comments to pilots about their military service such as "If you guys take more than three or four days a month in military leave, you're just taking advantage of the system.";  "I used to a guard guy, so I know the scams you guys are running."; "Your commander can wait.  You work full time for me.  Part-time for him.  I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines."; Continental is your big boss, the Guard is your little boss."; "It's getting really difficult to hire you military guys because you're taking so much military leave."; "You need to choose between CAL and the Navy."

The Court affirmed the trial court's dismissal of the hostile work environment claim concluding that Congress never intended to create such a claim. The Court's rationale was premised on two important points.  First, unlike Title VII, which prohibits discrimination in the "terms, conditions or privileges of employment", USERRA merely covers "benefits of employment".  The Court reasoned that the use of different phrases expressed Congressional intent to cover a narrower set of circumstances that would give rise to a claim than Title VII afforded.  Second, the Court observed  that the Department of Labor had promulgated regulations interpreting USERRA and included no reference to harassment or hostile work environment thereby providing further support that it should not be interpreted as providing such a cause of action.

For these reasons, the Court held that USERRA affords no cause of action for discrimination or harassment based on a hostile work environment theory. You can access the full opinion in Carder v. Continental Airlines, Inc. here.

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Federal law prohibits private employers from terminating the employment of or discriminating with respect to employment against an individual because the individual is or was a debtor under the Bankruptcy Code.  In a recent decision of the U.S. Court of Appeals for the Fifth Circuit, the appellate court held that the anti-discrimination provisions of the federal bankruptcy code do not provide an an applicant for employment a cause of action against a private employer when the applicant is denied employment solely because of a previous bankruptcy filing.  (Burnett v. Stewart Title). 

The facts of Burnett are straightforward.  Burnett applied for employment with Stewart Title in 2007.  She was offered a job conditioned on the successful completion of a drug screening and background check.  The background check revealed that, in 2006, Burnett filed a Chapter 13 bankruptcy proceeding.  As a result of this bankrupcty filing, Stewart Title rescinded its conditional employment offer.  Burnett sued claiming she was discriminated against in violation of the bankruptcy code. (11 U.S.C. 525).  Section 525(b) provides that:

No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt--

(1) is or has been a debtor under this title or a debtor or bankrupt under the Bankruptcy Act;

(2) has been insolvent before the commencement of a case under this title or during the case but before the grant or denial of a discharge; or

(3) has not paid a debt that is dischargeable in a case under this title or that was discharged under the Bankruptcy Act.

Applying canons of statutory construction, the Court of Appeals concluded that the act of hiring is not encompassed within Section 525(b)'s prohibition against "discriminating with respect to employment" and therefore, Burnett had no claim.  Consequently, the Court held that "11 U.S.C. 525(b) does not prohibit private employers from denying employment to applicants based on their bankruptcy status."

You can access the full copy of the opinion here.

One caveat, the anti-discrimination provisions of the bankruptcy code do preclude a governmental employer from refusing to hire an applicant solely because of the applicant's prior bankruptcy filings.

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The U.S. Supreme Court recently considered the circumstances when an employer may be liable for employment discrimination based on the unlawful, discriminatory animus of an employee who influenced, but did not make, an ultimate employment decision.   This theory is commonly referred to as the Cat's Paw theory derived from fable about the monkey who convinces the cat to reach into the fire to pull out the roasting chestnuts.  The cat gets burned while the monkey makes off with the chestnuts.  In discrimination cases, the Cat's Paw theory refers to a situation where a supervisor with a discriminatory animus who influences, but does not make, the adverse employment decision.

The facts of Staub are straight forward.  In Staub, the employee complained that several of his direct supervisor were hostile to his reserve military service that periodically required him to miss work.  The employee complained that this hostile supervisors wrote him up on several occasions that were motivated by his military service.  Specially, Staub's direct supevisor issued him a corrective action for violating a company rule requiring him to stay in his work area when he was not working with a patient.  Several months later, a co-worker complained that Staub's frequent availablility.  On another occasion, the hostile supervisor reported that Staub had left his workstation without permission in violation of the earlier corrective action.  A hospital executive, whom had no discriminatory animus, reviewed Staub's file and made the decision to terminate his employment; at least in part on information contained in the file that was initiated by Staub's direct supervisors (and whom allegedly had discriminatory intent).  Staub appealed his termination through the hospital's grievance procedure but the decision stood.  Staub won at trial, but on appeal, the Seventh Circuit Court of Appeal reversed holding that since there was no evidence that the ultimate decisionmaker had a discriminatory animus, Staub could not hold the hospital liable for the discriminatory animus of a supervisor who was not the ulimate decisionmaker. 

The Supreme Court reversed the court of appeals.  As the Court stated, "If the employer's investigation results in an adverse action for reasons unrelated to the supervisor's original biased action . . . then the employer will not be liable."  However, "the employer is at fault [when] one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision."  The core holding of the opinion is that "if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the law]."

Staub substantially expands the scope of situations where employers can be held liable for discrimination based on the acts of nondecisionmaker supervisors. You can access a full copy of Staub v. Proctor Hospital here.

What others are saying about Staub.

Mrs. Palsgraf and the Cat's Paw Doctrine

With a Friend Like Justice Scalia . . . Cat's Paw Decision Not Very Employer Friendly

The Supreme Court Upholds Cat's Paw Theory of Liability in Anti-Military Discrimination Case

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I've written several posts advocating the advantages of employer's use of waivers of jury trials to resolve employment disputes with employees.  (See posts here and here).  To recap, the mutual waiver of jury trial provides the employer and employee a fair way to resolve employment disputes without some of the disadvantages that other forms of alternative dispute resolution present.  The Fort Worth Court of Appeals recently enforced an employer's agreement with its employee to waive the jury trial of any disputes between them.  

In In re Frank Kent Motor Company, the Court of Appeals found that the waiver of jury trial provisions contained in the employer's handbook, and that the employee was aware of, was enforceable even though the employee argued he did not sign the acceptance of the waiver knowingly, voluntarily or intelligently.  The employee argued that his acceptance of the policy was not knowing and voluntary because he feared he would lose his job if he did not sign the agreement; he wasn't represented by a lawyer when he signed; he refused on two prior occasions to sign the agreement; the agreement was not negotiated and the employer indicated no willingness to negotiate changes; and his supervisor told him he had no choice but to sign the agreement.  Despite these allegations, the Court of Appeals found the allegations insufficient to overcome the presumption that the agreement was knowingly and voluntarily accepted. 

You can find a copy of the full opinion in In re Frank Kent Motor Company here.

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The Supreme Court of Texas has agreed to hear argument in two employment cases. 

In Prairie View A&M University v. Diljit K. Chatha, (No. 10-353) the Court agreed to consider whether the 180-day statute of limitations for a government employee’s complaint about discriminatory pay begins from the date of the first paycheck reflecting the decision or the (earlier) date on which the employee was informed of the decision.

In El Apple I, Ltd. v. Myriam Olivas, (No. 10-0490), the Court will consider the appropriate manner of calculating attorney's fees of a prevailing party in a discrimination case.   

H/T to the Supreme Court of Texas Blog.

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The U.S. Supreme Court announced that employees, who never engaged in protected activity, can bring third-party retaliation claims against their employers when they suffer an adverse employment action due to their connection with a person who has engaged in protected activity.

The facts of Thompson v. North American Stainless are straightforward.  In February 2003 North American Stainless was advised by the EEOC that Miriam Regalado filed a sex discrimination charge of discrimination against it.  Three weeks later, Regalado's fiancee, Eric Thomas, was terminated.  Thomas filed a charge of discrimination of his own alleging that he was fired in retaliation because his fiancee filed a charge of discrimination.  The EEOC found that Thomas had been retaliated against and issued a right to sue letter when conciliation was unsuccessful.

When the case reached the trial court, the judge dismissed the suit finding that Title VII did not recognize third-party retaliation claims.  Because the case was decided on a motion to dismiss (prior to any discovery), the reviewing courts were required to take Thomas' allegation as true (i.e., that he was in-fact, terminated for his fiance's charge of discrimination).  The Sixth Circuit Court of Appeals affirmed the dismissal for a different reason.  The Sixth Circuit concluded that Thomas never engaged in protected activity because he didn't filed a charge on his or his fiance's behalf prior to his termination and therefore he couldn't bring a retaliation claim.

The U.S. Supreme Court reversed.  Justice Scalia wrote, in a unanimous opinion (Kagan not participating) that the Court has little trouble concluding that if Thomas was fired because his fiancee filed a charge of discrimination, then he has a claim under the anti-retaliation provisions of Title VII.  The Court refused, however, to provide a bright line test as to which third-parties might have a claim stating:

We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. . .   The significance of any given act of retaliation will often depend upon the particular circumstances.

 In holding that Thompson had a claim, the Court next concluded that Thompson had standing to sue.  The Court held that a plaintiff within the zone of interest sought to be protected by Title VII (i.e., protecting employees from unlawful actions of employer), has standing to bring a claim against his employer even though the employee had not engaged in protected activity himself.  The Thompson opinion clearly expand the scope of potential plaintiffs that can bring claims against their employers regardless of whether or not they engage in protected activity.

You can read the full opinion here. 

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Barry Shlachter of the Fort Worth Star Telegram reports today on an employment dispute you rarely see these days.  Shlachter profiles a new lawsuit filed by Saginaw resident Corey Gillespie against Dee King Trucking of Amarillo.  According to the article, Gillespie (a relatively new employee (and importantly not an independent contractor) with the company) was summoned for jury duty in Tarrant County for a misdemeanor criminal case.  Upon advising his employer of his call to service, the company dispatcher told him to "pick up the load or you're jobless." 

As always, there are two sides to the story.  The article explains that the company reassigned Gillespie's truck, with his cooperation, because neither knew how long his jury service would last.  Moreover, the company claims that its repeated and multiple attempts to contact Gillespie after his service to arrange for his transportation to Amarillo to pick up his truck were met with only a text message response that the employee had a bad feeling and was going to pass.

While cell phone records, the trial judge's testimony (the trial judge apparently talked to Gillespie's employer upon being informed he was jobless and was informed that Gillespie had not lost his job) and other documentary evidence may be key to determining what really happened, with fact questions like these, a jury is likely to be left to decide which version of the truth it believes.  Since most jurors are likely to be employees themselves and all are fulfilling their civic duty by serving on a jury, it is easy to imagine how they might empathize with a plaintiff like Gillespie.  This case provides an important reminder of an employer's duties with respect to an employee's jury service. 

In Texas, a private employer may not terminate the employment of a permanent employee because the employee serves as a juror.  Independent contractors and temporary employees are not protected by the Texas law.  An employee who is terminated in violation of the Texas statute is entitled to reemployment, 1-5 years of compensation and attorney's fees.  The Act further provides for criminal penalties and contempt sanctions.  Similarly, federal law affords jurors in the federal court system with similar protection.

You can access Barry Shlachter's article about the Gillespie case here for several weeks before it is achieved by the paper.

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The blog has been updated with bills enrolled in the Texas Legislature the week of January 11, 2011 likely to effect Texas employers.  This week's bills include bills targeted at prohibiting workplace smoking; prohibitions against sexual orientation discrimination; payment of wages through payroll card accounts and a bill to require employers to use the federal E-verify system.  You can access all the newly enrolled bills here.

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It is pretty difficult for a party to get an adverse arbitration award reversed or vacated.  A recent Dallas Court of Appeals decision shows the rare instance were such a reversal occurred.  In Alim v. KBR (Kellogg, Brown & Root) --Halliburton, the Dallas court held that an arbitrator's failure to disclose, in an employment discrimination, breach of contract and retaliation case, that he had served as an arbitrator in a prior case involving KBR's party representative and a related company established facts that might create a reasonable impression of the arbitrator's partiality.  Consequently, the court vacated the adverse arbitration award and remanded for a new arbitration proceeding.  You can access the court's opinion here.

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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. 

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The Fort Worth Court of Appeals ruled that the provisions of the federal Lilly Ledbetter Fair Pay Act of 2009 extending the charge filing deadlines for certain pay discrimination claims should not be automatically applied to pay discrimination claims arising under state law.

In Tarrant Regional Water District v. Villanueva, Tamara Villanueva brought suit against the the District for gender-based pay discrimination arising from her failure to receive a five percent pay increase she believed she was entitled.  After being given only a four percent increase in pay, Villanueva hired an attorney who threatened the District  with a gender-based pay lawsuit.  Additionally, immediately after being informed that she would not receive the five percent raise she requested, she started forwarding portions of the District's employment policies from her work e-mail account to her personal e-mail account. 

More than 180 days after Villanueva began forwarding copies of the employment policies to her personal e-mail account and her lawyer's transmission of the demand letter to the District, she filed a charge of discrimination with the Texas Workforce Commission's Civil Rights' Division.  She admitted in her deposition, which was filed along with the District's plea to the jurisdiction (similar to a motion to dismiss), that she believed she was being discriminated against on the basis of her gender more than 180 days prior to filing her charge of discrimination.  Ordinarily, this would render her claim under state law untimely.

The District challenged the court's jurisdiction to hear the pay discrimination part of her lawsuit.  The trial court denied the District's plea to the jurisdiction.  On appeal, the District argued that the trial court lacked jurisdiction over the the pay discrimination claim because Villanueva failed to file her administrative complaint within the required 180-day period  after the District committed the unlawful employment practice.  Villanueva countered that the passage of the federal Lilly Ledbetter Fair Pay Act of 2009 should be automatically read into the Texas Labor Code prohibitions against pay discrimination thereby rendering her claim timely. 

The Fort Worth Court of Appeals rejected Villanueva's argument for several reasons.  First, the Texas Legislature considered amending the Texas Labor Code during its 2009 session to incorporate the provisions of the Lilly Ledbetter Act.  That bill was never passed.  Second, when Congress has amended provisions of other federal anti-discrimination laws such as the ADA (amended by the ADA Amendments Act), the Texas Legislature passed similar legislation to adopt or incorporate the changes in federal law.  The appeals court summarized the basis for its holding by stating, "while we are guided by analogous federal statutes and the cases interpreting them, we see no reason to write automatic incorporation language into Chapter 21 [the Texas Commission on Human Rights Act] when out legislature has shown that it knows how to amend the chapter when it wants to include specific federal provisions."  Consequently, the court of appeals held that Villanueva's pay-discrimination claim was untimely and should be dismissed.

The Villanueva opinion sets up a split of authority among the Texas courts of appeals.  This split may find its way to the Texas Supreme Court for resolution.  See Houston Court of Appeals Says Ledbetter Act Applies to Texas State Law Claims.  Without attempting to predict how the Supreme Court of Texas will resolve the case, I believe the Fort Worth Court's analysis is the proper one.  Meanwhile, the Texas Legislature starts its session in several weeks.  A state law Lilly Ledbetter bill is likely to be reintroduced this Legislative Session.

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In its first FMLA opinion, the Texas Supreme Court held that agencies of the State of Texas cannot be sued for FMLA violations arising out of an employee's FMLA leave taken for his own serious health condition.   In University of Texas at El Paso v. Herrera, the Supreme Court of Texas held that, unlike the family care provisions of the FMLA, Congress did not abrogate Texas' sovereign immunity for violations of the FMLA self-care provision and therefore the State of Texas cannot be sued for such violations.

The underlying facts are as follows.  Alfredo Herrera was an HVAC technician for the University of Texas at El Paso.  Herrera sustained a work-related injury to his elbow requiring a nine month leave of absence.  One month after he returned to work, his employment was terminated.  He sued alleging that he was terminated for taking personal medical leave under the self-care provision of the FMLA and exercising his First Amendment rights by complaining about unsafe work conditions.  UTEP challenged the court's jurisdiction over the claim asserting that it was barred by sovereign immunity.  The trial court and court of appeals found that jurisdiction existed. 

Acknowledging that the U.S. Supreme Court held that Congress effectively abrogated state sovereign immunity for the FMLA family-care provisions, the Texas Supreme Court found that there was no evidence in the FMLA legislative history or Congressional findings that women took more personal medical leave (or were thought to do so) than men.  Because, according to the Court, the self-care provisions of the FMLA were not targeted at an identified pattern of gender discrimination on the part of the States, Congress overreached when it attempted to apply the self-care leave provisions to the states. 

While the opinion analyzes complex issues of state sovereignty and Congressional findings, the simple take away from Herrera is that the State of Texas cannot be sued for FMLA violations arising out of an employee's need for leave for self care.   

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Mega class-actions attempting to adjudicate discrimination claims on behalf of thousands or tens of thousands of class members are often fundamentally unfair to employers and violate their right to due process. The recent $250M jury verdict against Novartis (5,200 potential class members) and the affirming of a class certification order of up to 1.5 million Wal-Mart workers for various pay and promotional practices highlight the threat that mega-class actions can pose to large employers.

Large class actions adjudicating the claims of hundreds or thousands of employees may be fairly tried when they adjudicate a specific, objective written policy of an employer and significant variables are absent.  However, when large class actions attempt to adjudicate claims involving inherently subjective components (such as unwritten rules or practices with dozens, if not hundreds of variables); individual issues must predominate.  This is especially true when the issue may involve hundreds or thousands of discrete decisions made by different decision-makers (e.g., promotions or job assignments).  A class trial of thousands of discrimination claims tends to devolve into evidence of the personal experiences of a hand-full of class representatives based on a few anecdotal (and usually extreme) examples of conduct (e.g., the Novartis baby-carriage rhyme).  This process deprives an employer of being able to defend the individual employment decisions on a case-by-case basis and sacrifices the employer's right to due process in the name of perceived efficiency or economy.  

The trial of a mega-class action to adjudicate the claims of 1.5 million employees reminds me of Isaac Asimov's 1955 short story "Franchise".  In Franchise, a futuristic United States turns to electronic democracy. Rather than conducting political elections, a supercomputer, Multivac, selects a single "most representative" person from the population. Multivac then questioned the “most representative” person to determine the overall electorate orientation. All elected offices are then filled by candidates the computer deems acceptable to the populace as determined by the "most representative" person.

It would be fundamentally un-American to choose our elected officials by selecting a "single most representative" voter.  It similarly violates fundamental notions of due process and fairness to hold employers liable for wide-spread, systematic discrimination involving dozens of variables in a trial that considers the stories of only a handful of the potential class members.  Courts should reexamine whether an employer's due process rights can be adequately preserved in the collective adjudication of mega-class action of discrimination claims.

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The U.S. Supreme Court reversed and remanded a win the City of Chicago obtained against an African-American class of firefighter applicants seeking positions with the City.  In Lewis v. City of Chicago, a group of firefighter applicants filed a lawsuit against the City challenging the City's 1996 decision that it would only consider those applicants who scored "well-qualified" on the entrance examination.  Applicants who passed the test, but only scored "qualified" were not further considered for employment opportunities.

The plaintiffs challenged their exclusion from the screening process when the City exhausted its pool of well-qualified applicants but failed to begin considering those who scored "qualified" on the test.  The thrust of the plaintiffs' claim was that the arbitrary decision to only consider those "well-qualified" applicants had a disparate impact on racial minorities.  The plaintiffs won at  trial, but their victory was reversed when the court of appeals held that because none of the applicants filed a timely charge of discrimination from the date the decision was made to only hire applicants from the "well-qualified" list, their claims were untimely and barred.

The U.S. Supreme Court reversed the court of appeals holding that a plaintiff who does not file a timely charge of discrimination challenging the adoption of an allegedly unlawful practice may still assert a disparate impact claim in a later charge challenging the employer's use of that practice as long as the plaintiff alleges each of the elements of a disparate impact claim.  A complete copy of the Court's opinion can be accessed here. 

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Last week the EEOC issued two Informal Discussion Letters addressing employment practices or policies that might create liability under a disparate impact theory of discrimination.  Since the discussion letters do not constitute official opinions or interpretations of the Commission, the significance of back-to-back letters on the same topic is not the content (the letters do not break any new legal ground or make any surprising pronouncements), but that it suggests the Commission might be interested in finding and bringing more disparate impact claims.  The following is a brief summary of the discussion letters.

The first letter dated February 19, 2010, discusses whether a proposed qualification standard that Public Health Directors possess a master's degree, without the possibility of substituting experience or other education, violates Title VII.  The Attorney-Advisor of the Office of Legal Counsel noted that if the master's requirement had a significant disparate effect on a protected group, it might be unlawful if the employer cannot justify that the requirement is "job related and consistent with business necessity" and there is no alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group."

The second letter dated March 9, 2010, discusses employers' use of credit checks to screen job applicants.  While acknowledging that the EEOC has no authority to enact legislation to prohibit employer credit checks, its authority does extend to circumstances where an employer's use of credit information disproportionately excludes minority candidates and the employer was unable to show that the practice was needed to operate safely or efficiently.  The Commission's Assistant Legal Counsel also noted that in May 2007, an attorney who primarily represents class action plaintiffs against employers testified that "credit checks have not been shown to be a valid measure of job performance."  Including a reference in the discussion letter to testimony opining that credit checks do not effectively predict job performance (and then posting the letter on the Commission's website) suggests that some at the Commission may share a similar view about the use of credit checks to screen applicants.   

While these Informal Discussion letters do not constitute a written opinion or interpretation of the EEOC they are instructive in that they highlight an issue that the EEOC is focusing at least some of its resources.

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By Executive Order dated March 25, 2010, Houston Mayor Annise Parker, added sexual orientation and gender identity as protected categories under the City's anti-discrimination, harassment and retaliation policy.  The Order prohibits discrimination, harassment and retaliation based on gender identity and sexual orientation in all of the City's employment, contracting and vending activities and in the provision and accessing of all City services, facilities, programs and activities.

Specifically prohibited the policy are the following:

• Failing or refusing to hire, recruit, appoint, promote or train any individual or otherwise discipline, demote, transfer lay off, fail to recall, or terminate any individual because of such individual's sexual orientation and/or gender identity;
• Limiting, segregating or classifying employees or applicants in a way that would deprive, or tend to deprive, any individual of equal opportunity or otherwise adversely affect the status of the employee or applicant because of the individual's sexual orientation or gender identity;
• Failing or refusing to recommend any contract or purchase for award based on a contractor or vendor's sexual orientation or gender identity;
• Failing to make available to any member of the public or employee use of a city facility or receipt of city service because of their sexual orientation or gender identity;
• Impeding access by an employee or member of the public to a city restroom facility that is consistent with and appropriate to that person's expression of gender identity;
• Limit participation by any city employee or member of the public in any city-sponsored activity because of the person's sexual orientation or gender identity in which they would otherwise be permitted to participate.

 You can access a full copy of the Executive Order here.

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Yesterday the First District Court of Appeals in Houston issued an opinion I first thought was an April Fool's joke.  However, since this opinion hasn't been withdrawn, I presume the Court was serious in holding that the Lilly Ledbetter Fair Pay Act , an act of Congress that has the effect of extending the statute of limitations to certain pay practices, applies to claims filed under the Texas Commission on Human Rights Act.  The Court cites two federal district court opinions similarly holding, but this is the first state court of appeals to apply the federal amendment to Title VII to the state law.  This holding is even more surprising to me given that the Texas Legislature, in its last term, considered adopting provisions similar to the Ledbetter Act, but did not pass those provisions.

The effect of the Houston Court's opinion is to render state law claims that would have been previously time barred as timely. You can read the First District Court of Appeals' decision in Prairie View A & M University v. Chatha here.

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I wrote about an unusual dispute between the EEOC and a San Antonio law firm where the EEOC sought enforcement of an administrative subpoena seeking law firm records in connection with a charge of discrimination filed by a former employee of the firm.  You can read that post here.

Well, like Spring itself that blows in like a lion and out like a lamb, the law firm has provided the information sought by the EEOC subpoena and the EEOC has requested dismissal of its application to enforce the administrative subpoena (which has been granted).  Much ado about nothing after all.  You can review the EEOC's Motion to Dismiss here.

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On February 18, 2010, the EEOC published a proposed rule defining the employer's "reasonable factors other than age" (RFOA) defense to a claim of disparate impact age discrimination.  A disparate impact theory of age discrimination argues that while the policy or practice challenged does not directly discriminate on the basis of age; it affects older workers in greater numbers.  When a plaintiff can show that an age-neutral employment policy or practice has an adverse impact on workers 40 and over, the burden shifts to the employer to show that the challenged policy or practice is based on RFOA.

The proposed rule defines a RFOA as "one that is objectively reasonable when viewed from the position of a reasonable employer (i.e., a prudent employer mindful of its responsibilities under the ADEA) under like circumstances."  The proposed rule goes on to provide that "to establish the RFOA defense, an employer must show that the employment practice was both reasonably designed to further or achieve a legitimate business purpose and administered in a way that reasonably achieves that purpose in light of the particular facts and circumstances that were known, or should have been known to the employer."

The proposed rule identifies the following non-exhaustive list of factors that may be relevant when examining whether an employment policy or practice is based on a reasonable factor other than age:  

• Whether the employment practice and the manner of its implementation are common business practices;
• The extent to which the factor is related to the employer's stated business goal;
• The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);
• The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;
• The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the number of persons adversely affected, and the extent to which he employer took preventive or corrective steps to minimize the severity of harm, in light of the burden of undertaking such steps; and
• Whether other options were available and the reasons the employer selected its chosen option.

An employer is not required to adopt an employment practice that has the least severe impact on the older workers; however, the availability of other options is one factor relevant in determining whether the practice was reasonable. Of course, the RFOA defense only applies to those employment practices that are facially age-neutral.  The proposed rule explains that its analysis will most often apply when the practice is based on an objective non-age factor and the only question is the reasonableness of the factor.  However, in considering whether the practice is based on a "factor other than age", the EEOC suggests analyzing:

• The extent to which the employer gave supervisors unchecked discretion to assess employees subjectively;
• The extent to which supervisors were asked to evaluate employees based on factors known to be subject to age-based stereotypes; and
• The extent to which supervisors were given guidance or training about how to apply the factors and avoid discrimination.

Following a sixty (60) day public comment period, the EEOC will review comments and potentially make revisions to the proposed rule before publishing a final rule that would go into effect ninety (90) days after publication.   A copy of the proposed rule and the EEOC's preamble can be accessed here.

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The EEOC has released its FY 2009 Charge Statistics and they show a surprising decrease in the number of charges filed with the agency (although FY 2009 is compared against the highest charge filing fiscal year ever).  The total number of charges in FY 2009 dropped from 95,402 in FY 2008 to 93,277 in FY 2009.  While there was a drop in the overall number of charges filed, FY 2009 still recorded the second highest number of charges ever filed.  

The breakdown of the FY 2009 statistics shows that there were small increases in the number of charges alleging national origin, religious discrimination and retaliation.  There was a nearly 2,000 charge increase in disability-related charges.  The categories all saw record high filings.  All other charge categories saw a decrease in charge filings. 

Prediction for FY 2010 numbers --Expect to see continued increase in the number of disability and religious discrimination filings with other categories remaining relatively constant.  You can find full detail on the number of charge filings here.

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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 Discrimination Act.

According to the Commission's press release, D.R. Horton, 

denied [the plaintiff] additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

Prior to the passage of the ADA Amendments Act, it is unlikely that the EEOC would have brought this case under the ADA because most courts were reluctant to conclude that pregnancy was a disability.  Instead, the Commission would have had to show under the Pregnancy Discrimination Act that the pregnant employee was treated differently than other nonpregnant employees who were similar in their ability and inability to work (i.e., similar work restrictions).  However, the EEOC is targeting employer leave policies that are perceived by the Commission as rigid.  An example of such policy is one that provides a maximum leave duration of six or twelve months.

One aspect of this tactic that should be troubling to Texas employers is the fact that Texas law uses the enforcement of a neutral absence control policy as a defense to a workers' compensation claim.  Where an employer uniformly and consistently applies a leave of absence policy with a maximum duration, an employee who is separated from employment for exhausting the available leave of absence, even if the absence is caused by an on-the-job injury, will have no workers' compensation retaliation claim.  Suits like the EEOC's suit against D.R. Horton may have the effect of requiring employers to make more frequent exceptions to these neutral absence control policies that might weaken their effectiveness as a defense in Texas workers' compensation retaliation cases.

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The U.S. Supreme Court completed its 2008-09 term. On the docket were five cases of interest dealing with employment law.  Here is a summary of the holdings in those cases.

• Crawford v. Metropolitan Gov’t of Nashville and Davidson County, Tenn., (2009) An employee’s participation in an employer’s internal harassment investigation by responding to the employer's questions may constitute protected oppositional activity under Title VII that would support a retaliation claim. 
• 14 Penn Plaza LLC v. Pyett, (2009) Provisions in collective bargaining agreements that clearly and unmistakably require union members to submit statutory discrimination claims to the grievance and dispute resolution provisions of the agreement are binding and enforceable on the bargaining unit members.  More detail here.
• AT&T Corp. v. Hulteen, (2009) An employer does not necessarily violate the Pregnancy Discrimination Act when it calculates and pays pension benefits based on an accrual rule that applied only pre-PDA, and gives less retirement credit for pregnancy leave than for other medical leave.
• Gross v. FBL Financial Services, Inc., (2009)  A plaintiff asserting an age discrimination claim under a disparate (i.e., intentional) treatment theory must prove that age was the “but for” cause of the challenged employment action and the burden of proof never shifts to the employer to show that it would have taken the same action regardless of the age of the plaintiff.  More detail here.
• Ricci v. DeStefano, (2009)  An employer can avoid Title VII disparate-impact liability related to a promotional exam having a disparate impact on minorities if the employer can show a strong basis in evidence that, had it not certified the results, if would have been subject to disparate-treatment liability.  More detail here.

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In one of the most anticipated employment discrimination cases in years, the U.S. Supreme Court held that the City of New Haven discriminated against non-minority firefighters when it chose to ignore the test results of a racially-neutral promotional exam because too few minorities scored high enough on the test to be considered for promotion.  I previously wrote about this case and outlined its facts.  (See here for post).

In Ricci v. DeStafano, a majority of the Supreme Court began with the premise that the City's decision to ignore the results of its promotional testing because too few minority fire fighters scored well on the test, constituted intentional discrimination against the firefighters that scored well on the test.  There was no dispute that the City disregarded the test results because of the race of the test takers and the fact that no minorities scored high enough to qualify for promotion.  Concluding that this conduct constituted intentional discrimination, the Court examined whether the City had a legitimate justification for ignoring the test results. 

The City's sole justification for the ignoring the test results was that if it recognized the results it would face litigation from the minority firefighters who took, and scored poorly, on the test.  The minority firefighters, the City predicted, would sue the City claiming that the racially-neutral test had a disparate impact on minority firefighters and therefore discriminated against them.  The City argued that it was faced with a Hobson's choice where no matter what it elected to do it would be faced with a discrimination lawsuit (i.e., either being sued by the white firefighters who scored well and were denied promotional opportunities because the test results were ignored or by the minority firefighters who claimed the test unintentionally discriminated against them by recognizing a test that had a disparate impact on minorities).

The Court explained that if the City had a "strong basis in evidence" that its recognition of the test results would subject it to disparate-impact liability in the absence of it taking the race-conscious, discriminatory action --not necessarily that it would lose an disparate impact case.  To make this showing, there would need to be a showing of a significant statistical disparity; and the tests were no job related and consistent with business necessity; or there existed an equally valid, less-discriminatory alternative that served the City's needs that it refused to adopt.  Applying this standard to the Ricci case, the Court concluded that City lacked a strong basis in evidence that it would be subjected to disparate-impact liability if it recognized the test results.  Therefore, it found that City discriminated against the non-minority firefighters when it threw out the test results.    

The lesson from Ricci is that when an employer is faced with qualification or promotional exam that may have a disparate impact on a protected class, the employer must build a strong record and attempt to ferret out the reasons for the disparity before deciding whether to ignore the results.  A strong case would begin with a test that was designed in such a way as to avoid a disparate impact as was the case in Ricci.  The Court's opinion makes clear that it is not intended to prohibit an employer from considering (before test administration) a way to design a test that provides a fair opportunity for all individuals, regardless of their race.  Instead, the legal analysis encourages employers (and gives them broad latitude) at the test-design phase to invite comments to ensure the test is fair.  This would tend to help to identify aspects of the prospective test that might not be job-related and consistent with business necessity or other equally effective, less discriminatory alternatives.  

With a strong record in this regard, an employer assert and prevail with the new defense announced by the Ricci court when it faced with the prospect of being sued for disparate treatment (i.e., intentional) or disparate impact (i.e., unintentional) discrimination.   

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In Gross v. FBL Financial Services, Inc., the U.S. Supreme Court was asked to decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.

In the case, Plaintiff Gross was employed by FBL Financial Group since 1971. In 2001 he held the title of claims administration director. Gross was reassigned in 2003 to the position of claims project coordinator. He was 54 years old.  Many of the job duties Gross previously performed were transferred to a newly created position and that position was given to a female former subordinate of Gross who was in her early 40’s. While Gross and the co-worker received the same compensation, Gross considered his reassignment and reallocation of job responsibilities a demotion. Consequently he filed suit alleging age discrimination under the Age Discrimination in Employment Act. At trial, the jury was asked to decide whether age was “a motivating factor” in the decision to reassign and reallocate Gross’s job responsibilities. This permitted the jury to find in Gross’ favor if even one of many reasons for the job changes was Gross’ age. FBL requested a jury instruction that would have only permitted the jury to find for Gross if he showed that the challenged job actions would not have occurred “but for” Gross’ age. The jury found for Gross.

On appeal, the U.S. Supreme Court found that it was improper to charge the jury under “a motivating factor” standard of causation. The U.S. Supreme Court held that a plaintiff asserting an age discrimination claim under a disparate (i.e., intentional) treatment theory must prove that age was the “but for” cause of the challenged employment action and the burden of proof never shifts to the employer to show that it would have taken the same action regardless of the age of the plaintiff. 

This is a significant, but perhaps short-lived, win for employers at the Supreme Court. Like other decisions of the Supreme Court that the Democratically-controlled Congress dislikes, expect quick legislation to be proposed to amend the ADEA to reinstate the “motivating factor” standard of causation.

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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 test for CFS and physicians are left to rely on forensically unreliable self-reports of the patient to make this diagnosis.   Notwithstanding this inability to test for or confirm the existence of this "syndrome," the federal court of appeals covering Texas held that CFS might qualify as a disability that an employer must reasonably accommodate. 

In EEOC v. Chevron Phillips Chemical Co., L.P., the Fifth Circuit Court of Appeals reversed a summary judgment in favor of Chevron on an employee's claim that she was discriminated against and denied reasonable accommodation for her chronic fatigue syndrome.

The employee, Lorin Netterville, was first diagnosed with CFS in 1987 while attending school and caring for her children at home.  She received a six-week course of treatment and her symptoms disappeared.  In late-2000 Netterville applied for employment with Chevron and was eventually hired.  As part of the employment process Netterville completed a medical history questionnaire, where she failed to disclose a history of excessive fatigue with work or exercise.

Several years later Netterville was required to work long hours of overtime that included manually packing boxes and moving supplies as part of Chevron's office relocation. Netterville claims she begin to suffer sleep disruptions that included getting no more than 1-2 hours of sleep per night for 6-7 days at a time.  Once a month she claimed she would sleep 17 hours straight.  She also claims she "began to run low-grade fevers and to suffer from headaches, disorientation, pain in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making at times she was unable to remember even her own son's name."  She became unable to sit or walk for more than thirty minutes at a time, was hypersensitive to light and sound, and experienced episodic crying spells and feelings of social isolation.  Approximately 1 year after her symptoms reoccurred Netterville was living with her sister who assisted her with daily living tasks like shopping, cooking, washing, showering, drying, dressing, and using the bathroom.  This assistance was primarily needed because of excruciating pain in Netterville's arms and morning nausea she experienced.

Netterville's physician suggested that she take a month off from work.  Because Netterville could not afford a month off without pay, she got her doctor to write a note advising for a two week break from work.  When Netterville presented her request to Chevron for the 2 weeks of time off, she inaccurately reported that her symptoms had reappeared 2 years earlier.  Because Netterville was hired by Chevron less than 2 years earlier, the company also began investigating whether Netterville had falsified her medical history questionnaire in addition to considering her leave request.  Ultimately Netterville was given her two weeks of leave.

Netterville's physician conditioned her release to return to work on additional accommodations.  He recommended that she be relocated to an office closer to her home.  Additionally, due to her alleged hand pain and concentration difficulties, the doctor also advised that Netterville needed to be in a job that allowed for alternate typing and reading rather than reading and typing for extended periods of time.  She also needed to be able to take a short nap during her lunch break.  When Netterville made these requests to her supervisor, he remained silent.  She was allowed, however, to return to work, and she was provided the accommodations she requested during her final 4 days at work.  Ultimately, Netterville was terminated for falsifying information on her medical questionnaire.

The EEOC filed a lawsuit on Netterville's behalf.  Relying heavily on EEOC-promulgated regulations and its compliance manual (the EEOC is one of the governmental agency litigants that gets to write the authority it then asks a court to rely on to find in its favor --something no private employer is allowed to do), the court of appeals held that Netterville was entitled to a jury trial on her claims because there were fact issues as to whether Netterville had a disability; whether she was terminated for a disability; and whether Chevron provided reasonable accommodation.

This case is an important reminder that any physical or mental impairment may qualify as a disability if it substantially limits a major life activity. Moreover, the major life activity substantially limited need have no bearing on an employee’s employment or performance of his or her job duties. With the passage of the ADA Amendments Act that substantially broadens the coverage of individuals with disabilities, expect more denials of and reversals of employer summary judgments in ADA cases.

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Hurricane season begins June 1 for the Texas coast.  The Tropical Meteorology Project from Colorado State University predicts in its 2009 Atlantic Seasonal Hurricane Forecast that there will be 12 named storms; 6 hurricanes; and 2 intense hurricanes this year.

Texas law protects most employees who evacuate their homes and work areas in compliance with a government evacuation order.  The law prohibits employers from terminating the employment of or otherwise discriminating against employees (other than emergency services personnel with adequate emergency shelter and employees needed to restore vital services) who leave their employment to to comply with an emergency evacuation order.  While evacuation orders are most frequently issued in Texas in connection with a  hurricane evacuation order, the law applies to any evacuation order.  Evacuation orders may be issued for emergencies such as wild fires, natural disasters, explosions or water contamination, chemical escapes or spills, terrorism activity, military action and other emergency actions.  Evacuation orders providing employees protection can be issued by local, county, state or federal authorities.

Not only are employees protected from discharge or discrimination from complying with such orders, they may also be eligible for unemployment benefits.  The employer's unemployment benefit account will not be charged for the benefits paid under this circumstance.

(Photo courtesy of NOAA Aug. 29, 2005 at 11:15 a.m.)

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In 2008 the Genetic Information Nondiscrimination Act (GINA) was passed.  Earlier this year the EEOC issued proposed regulations interpreting GINA and those regulations are expected to be finalized this month.  GINA generally prohibits employers from possessing and using genetic information about individuals or from making employment decisions using that information, with several limited exceptions.  A number of other commentators have provided a great deal of thoughtful analysis about GINA and its proposed regulations.  The Employer Law Report, Connecticut Employment Law Blog and the Ohio Employer's Law Blog all have useful information on GINA.

In thinking about GINA's likely impact, I question whether it will have a significant effect on Texas employment practices.  First, the type of information protected by GINA is not the kind of information typically used or gathered by employers.  With the exception of employers who use healthcare providers to conduct business-related, post-offer of employment physicals, it is difficult to imagine a systemic employment practice an employer might engage in that would run afoul of GINA.  For those business-related, post-offer of employment physicals, employers can avoid violating GINA by instructing the healthcare provider to either take no family medical history from the individual or make sure it does not pass that information on to the employer.

Second, Texas has prohibited discrimination in employment on the basis of an individual's genetic information or refusal to submit to a genetic test since 1997.  Like GINA, the Texas statute also requires that any person holding genetic information must keep it confidential with few exceptions.  Although the law has been in effect for 12 years, there are no reported Texas state or federal opinions where an applicant or employee sued an employer alleging violation of the Texas statute.

At first blush GINA appears to be a solution looking for a problem.  While I think GINA  is an interesting statute --one which employers must pay attention to and comply with --it is unlikely to have a significant impact on the way employers operate on a day-to-day basis.

Follow the Texas Employment Law Update on Twitter (here).

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I just returned from Tulane University Law School's 27th Annual Multi-State Labor and Employment Law Seminar held at the La Cantera resort in San Antonio, Texas.  (See brochure here).  Attendees and presenters at this conference are some of the finest and most experienced labor and employment lawyers in the country.  During my three days at the conference, I did an unscientific, anecdotal survey of the practitioners I visited with.  Without exception, the practitioners I talked to disfavored the arbitration of employment disputes.  I've already written about the disadvantages of arbitration on this blog. (See post here). However, I was surprised that I did not find a single lawyer at this conference (and I don't profess to have spoken to all or even a majority of them) that preferred trying a case in arbitration over a case tried to a judge of jury.  No one I spoke to had ever enjoyed the "benefits" of a faster or more inexpensive resolution of the dispute in arbitration than would have realized in court.  No attorney extolled the virtue of the the limited appeal rights or the "finality" arbitration promises over the appellate rights our Texas rules provide.  Therefore, I want to encourage Texas employers to abandon the use of mandatory arbitration programs with their employees in favor of adopting mutual waivers of jury trials.  To read about the advantages of jury waivers, click here.

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As we approach local elections, it is good to remember that Texas law may require an employer to provide an employee with paid time off to vote.  The Texas Election Code makes it a Class C misdemeanor for an employer to refuse to allow an employee to be absent from work on election day for purpose of attending the polls to vote.

An employer is not, however, required to allow time off to vote if the polls are open on election day for voting for two consecutive hours outside of the employee's working hours.  For example, if you have an employee that regularly works 8:30 a.m. to 5:30 p.m. with a one-hour lunch break, an employer may have to give that employee time off from work on election day to attend to the polls and vote. In Texas, the election polls are generally open from 7:00 a.m. until 7:00 p.m. 

Because the term "penalty" means a loss or reduction in wages, an employer should provide paid time off for the employee to attend the polls to vote if the polls are not open on election day for at least two consecutive hours outside the employee's working hours.

An employer can avoid this interruption and the payment for otherwise nonworking time by rescheduling work schedules on election day so that employees have two consecutive hours off while the polls are open (e.g., reschedule the employee to work 8:00 a.m. to 5:00 p.m. on election day). 

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For several years the EEOC has enhanced its education and enforcement efforts using existing laws to protect employees with caregiving responsibilities (i.e., caring for children and ill family members).  This week the Commission issued guidance for employers it describes as "Best Practices" to assist employees in balancing work and family responsibilities.  Best Practices are proactive measures going beyond federal nondiscrimination requirements to help employees achieve a satisfactory work-life balance.

Acting EEOC Chairman Stuart J. Ishimari remarked that "Today we take another step forward, articulating not just the bare minimum required to avoid unlawful discrimination, but also thinking broadly about the ways in which family-friendly workplace policies can improve workers' ability to balance caregiving responsibilities with work."

The new guidance supplements the EEOC's 2007 guidance on Unlawful Treatment of Workers with Caregiving Responsibilities.  In addition to some common sense recommendations (e.g., train managers; develop, disseminate and enforce a strong EEO policy; investigate complaints), the most interesting suggestions to me are those related to flexible work arrangements. Some of the alternative work arrangements suggested include:

• Flexible work hours (i.e., permit a varying starting and stopping time within a certain range);
• Flexible week opportunities (e.g., work week consisting of four 10-hour days);
• Allowing for voluntary rather than mandatory overtime and allowing overtime to be scheduled in advance;
• Telecommuting, work-at-home or flexplace programs;
• Reduced-time options (i.e., part time work or job sharing programs).

EEOC's guidance provides a useful reference for any employer desiring to become more family-friendly and better assist its employees in achieving a balance between family and work. 

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Adam Liptak of the New York Times had an interesting preview about an important employment law case scheduled to be argued before the U.S. Supreme Court this month.  In Ricci v. Destafano, scheduled for oral argument on April 22, 2009, the Court is being asked to determine whether the City of New Haven's use, and then abandonment, of a firefighter promotional exam discriminated against white firefighters. 

As  Liptak wrote for the Times, Frank Ricci was an 11-year veteran of New Haven Fire Department who desired to advance to lieutenant.  To qualify for the promotion Ricci had to take a test that the City paid $100,000 to an independent testing company to develop.  The testing company , I/O Solutions, Inc., went to extraordinary lengths to ensure that the test was free of any racial bias.

Ricci wanted the promotion so badly that when the City offered the promotional exam, Ricci "gave up a second job and studied up to 13 hours a day.  Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews."

Ricci finished 6th out of the 77 candidates that took the test.  However, because none of the 19 African American firefighters scored high enough to qualify for the promotion, the City threw out the test.  At this point it appears that the City was concerned about being sued by the African American firefighters who scored poorly on the test claiming that the test had a disparate or adverse impact on them.

Instead, Ricci (along with eighteen other firefighters) sued the City claiming that its abandonment of the test because none of the minority candidates qualified for promotion under the test constitutes unlawful discrimination. The trial court recounted that the City's motives for abandoning the test that included fear of public criticism, the possibility of more lawsuits from minority applicants and a desire to promote diversity and manager role models for firefighters.

The case is likely to outline the extent to which an employer can go to further its goal of increasing racial diversity in the workplace.  And while most "reverse discrimination" lawsuits do not tend to do well in Court, the facts in Ricci make for an intriguing case for the Justices to consider.  For more background information and  "pregame" commentary on this case, the National Journal Magazine, the New Haven Independent and the Connecticut Employment Law Blog have some interesting articles.  Adversity.net has the results of the test by score and race.

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Today, the U.S. Supreme Court held that provisions in collective bargaining agreements that clearly and unmistakably require union members to submit statutory discrimination claims to the grievance and dispute resolution provisions of the agreement are binding and enforceable. 

In 14 Penn Plaza LLC v. Pyett ,  a dispute arose over a commercial office building's reassignment of night watchmen employees (whose duties were outsourced) to less desirable positions such as light duty cleaners and porters.  The reassigned employees, members of the Service Employee International Union, Local 32BJ, filed a grievance with the union contending that the reassignments violated, among other things, the CBA's ban on age discrimination.  When the grievances were unsuccessful, the Union requested arbitration under the dispute resolution procedures of the CBA.  The union later withdrew the grievances to the extent they complained about age discrimination prohibited by the contract but continued to press for arbitration on the remaining claims.

The disgruntled reassigned employees then filed a charge of discrimination with the EEOC over their reassignment claiming the reassignments were discriminatory.   After the EEOC issued a right to sue letter and the employees sued in federal district court, the defendant filed a motion to compel arbitration relying on the language of the grievance and dispute resolution procedures of the CBA with the union that stated:

§ 30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, . . . or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

The trial court and Second Circuit Court of Appeal refused to compel arbitration holding that a CBA could not waive the bargaining unit members' right to a judicial forum over statutory civil rights claims created by Congress.

The Supreme Court reversed holding that where the intent to submit statutory discrimination claims to the grievance and dispute resolution procedures of the CBA is clear and unmistakable (an issue that was not in dispute before the court --i.e., the parties agreed that the language was sufficiently explicit) nothing precluded the union's ability to waive its members right to a judicial forum to resolve those discrimination claims.  A majority of the Court rejected the employee's argument that the union was waiving important, substantive rights to be free from age discrimination. 

The Court noted that the union had not waived (nor could it) the employee's right to be free from and to challenge employment actions that were based on unlawful motivations such as age discrimination.  Rather, the Court observed, the Union had merely negotiated for and agreed that such claims would be resolved in a forum other than a judicial one --i.e., arbitration.  Consequently, the Court held that to the extent the employees were to litigate their statutory age discrimination claims they would have to do so within the confines of the grievance and dispute resolution procedures of the CBA.

As a consequence of this ruling it is unlikely that unions will agree in future negotiations that their grievance and arbitration procedures include employment discrimination and civil rights claims.  Placing the unions in the position of using limited resources to arbitrate otherwise individual claims is unlikely to be something that benefits the majority of the bargaining unit members.  This potential conflict of interest is something most unions would prefer to avoid. 

Other commentators have suggested, and I agree, that the holding of this case is likely to be limited because Congress may seek to overturn it as it did with the Court's Ledbetter decision.  See Jottings by an Employer's Lawyer and The Delaware Employment Law Blog . 

Another potential consequence is that the existence of a mandatory arbitration provision in a CBA covering employment discrimination claims may be an important factor the EEOC considers in deciding whether to litigate over a particular charge of discrimination.  Under the current law the EEOC is not be bound by the grievance and arbitration provisions in CBA's (nor individual employment contracts between employees and employers) and it could vindicate an employee's rights in a federal judicial forum notwithstanding the CBA.

Until legislation is passed to overturn 14 Penn Plaza, employers and unions with CBAs that clearly and unmistakably include employment discrimination and civil rights claims in the grievance and dispute resolution provisions will now be forced to resolve those disputes in an arbitral forum.

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On March 20, 2009 I posted an entry about several leave of absence bills pending in the Texas Legislature.  Today I want to highlight a few other bills that will effect Texas employers if passed.

• HB 32  Prohibiting discrimination against employees of workers' compensation nonsubscribers who sustain an injury in the course and scope of their employment.
• HB 183  A bill to link the Texas minimum wage to the federal minimum wage.
• HB 226 Prohibits an employer from discriminating against an employee that has refused to participate in an employer's charitable deduction campaign.  
• HB 978  To amend, and greatly expand, prohibited disability discrimination under the Texas Commission on Human Rights Act.
• SB 730 prohibits an employer from implementing policies prohibiting employees from keeping legal firearms and ammunition in locked vehicles on the employer's parking lot.
• SB 986 To extend the statute of limitations for discrimination claims alleging discrimination in the payment of compensation.  State law equivalent of the Lilly Ledbetter Fair Pay Act.

There are also a number of immigration bills pending this session.  Michael Fox has detailed those bills on his blog.

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The EEOC recently released the latest statistics detailing the number of charges of discrimination filed in 2008.  Last year marked the largest number of charges filed in a single year totaling 95,402 charges of discrimination.  While every category of charges increased (and the total increased 15.2 percent over 2007), charges of age discrimination and retaliation increased the most at 28.6 and 22.6 percent respectively. 

Disability discrimination claims saw the least amount of growth at 9.6 percent.  However, with the passage of the ADA Amendments Act in 2008, I expect 2009 disability discrimination claims to be up sharply during 2009.  Equal Pay Act claims were also up 16.6 percent and with the passage of the Lilly Ledbetter Fair Pay Act, claims arising under that statute will also likely increase in 2009 and beyond.  With escalating unemployment, the deepening recession, and an increase in the EEOC’s budget, I expect charge filings for 2009 will again set an all-time record for charge filings across all categories and an uptick in resulting civil rights litigation against employers.

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