Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Discrimination

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I Quit! Constructive Discharge Serves as Substitute for Adverse Employment Action

Posted in Age, Case Summaries, Discrimination
An essential element of most employment discrimination claims is that the employee suffered an adverse employment action. An employee who resigns often has difficulty making out a prima facie case of discrimination. An exception to this general rule is where the employee suffers a constructive discharge. Stated another way, where the employee can prove that the employer, … Continue Reading

Distinction Between Supervisor/Nonsupervisor Makes $70,000 Difference in Religious Discrimination Case

Posted in Case Summaries, Discrimination, Religion
The status of an employee as a supervisor or nonsupervisor can have a significant impact on the outcome of a discrimination, harassment or retaliation case. For example, if an employee who commits a hostile work environment is a supervisor, the employer could be deprived of valuable legal defenses like the Faragher/Ellerth affirmative defense. A recent case from … Continue Reading

EEOC Issues New Enforcement Guidance on Reasonable Accommodation of Pregnant Employees

Posted in Discrimination, News & Commentary
Several weeks ago, I wrote that the Supreme Court’s decision to grant certiorari in Young v. UPS (the case about an employer’s reasonable accommodation obligation to pregnant employees under the PDA) might end up signaling the end of light duty policies that limited  light duty availability to employees with worker’s compensation injuries or illnesses.  (post here).  Today, the EEOC issued new … Continue Reading

Fifth Circuit Holds, in Issue of First Impression, that But-For Causation Applies to Claims Arising Under the Jury System Improvement Act

Posted in Case Summaries, Discrimination, Retaliation
Both federal and Texas law prohibit discrimination against employees for participating in various types of jury service. Imagine an employer defending itself from the accusation that it terminated an employee because of her jury service and then looking across the courtroom to see the individuals who will most likely decide the merits of its case –a … Continue Reading

Investigation Closure Letters “Close the Loop” on Workplace Investigations

Posted in Discrimination, Harassment, Human Resources, Retaliation
One thing often overlooked in conducting workplace investigations is reporting back to the complaining party at the end of the investigation. I have seen many cases where the employer conducted a thorough investigation and took prompt remediation action but never communicated to the employee that it had done so.  From the employee’s perspective, he or she … Continue Reading

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

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

Fifth Circuit Reverses Controversial Trial Court Decision and Holds Termination of Employee for Expressing Breast Milk Constitutes Sex Discrimination

Posted in Case Summaries, Discrimination
Last week the Fifth Circuit Court of Appeals reversed a widely criticized trial court ruling that had held that a discharge of an employee because she was lactating or expressing breast milk did not constitute unlawful sex discrimination.  In EEOC v. Houston Funding, II, Ltd, the employer moved for summary judgment arguing that Title VII did not … Continue Reading

A Broken Clock is Right Twice Per Day: Supreme Court of Texas Holds Lilly Ledbetter Fair Pay Act Does Not Apply to Claims under State Law

Posted in Case Summaries, Discrimination, Wage & Hour
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 … Continue Reading

2011-2012 Term U.S. Supreme Court Wrap-Up of Employment Cases

Posted in Age, Case Summaries, Discrimination, Judicial Updates, Labor-Management Relations
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 … Continue Reading

Texas State Law Age Discrimination Claim Fails Where Employee’s Replacement is Older

Posted in Age, Case Summaries, Discrimination
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 … Continue Reading

Employment Lawyers Must Document Their Efforts to Recover Attorney’s Fees under Texas Commission on Human Rights Act

Posted in Case Summaries, Discrimination, Harassment, Retaliation
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 … Continue Reading

Archive for Webinar on Investigating Employee Complaints in the 21st Century Now Available

Posted in Discrimination, Harassment, Human Resources
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 … Continue Reading

Court Holds Ministerial Exception Bars Teacher’s Discrimination Suit

Posted in Case Summaries, Discrimination
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 … Continue Reading

Title VII Litigation Webinar on Persistent Evidentiary Challenges

Posted in Discrimination
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 … Continue Reading

Implicit Bias Science Interesting, But is it Predictive of Discriminatory Behavior?

Posted in Discrimination, News & Commentary
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 … Continue Reading

Texas Supreme Court Agrees to Hear Age Discrimination Case

Posted in Age, Discrimination, Judicial Updates
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 … Continue Reading

Choosing the Investigator

Posted in Discrimination, Harassment, Human Resources
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 … Continue Reading

Fifth Circuit Recognizes Hostile Work Environment Claim Under Age Discrimination in Employment Act

Posted in Age, Case Summaries, Discrimination, Harassment
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 … Continue Reading

Should You Ever Hang Up on the Texas Workforce Commission?

Posted in Discrimination, Harassment, Human Resources, Retaliation, Unemployment
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 … Continue Reading

Transitioning HR Professionals –Look to Verizon for Employment

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

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

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

What is Employment Practices Liability Insurance and Does My Company Need It?

Posted in Discrimination, Harassment, Human Resources, Retaliation
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 … Continue Reading

Fifth Circuit Holds Title VII Damage Caps Apply “Per Party” Not “Per Claim”

Posted in Case Summaries, Discrimination, Harassment, Retaliation
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 … Continue Reading

Fifth Circuit Holds Loss of Consortium Damages Unavailable To Spouse of Successful Title VII Plaintiff

Posted in Case Summaries, Discrimination, Harassment, Retaliation
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 … Continue Reading