Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Harassment

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Texas Legislature Adds Sexual Harassment Protection for Unpaid Interns

Posted in Harassment, Legislation, Uncategorized
Another legislative session ended with few changes affecting Texas employers on the labor and employment law front.  One bill that did become law is one that prohibits the sexual harassment of unpaid interns.  The law creates an offense if the employer’s agents or supervisors know or should have knowledge of conduct constituting sexual harassment was… Continue Reading

Texas Statutory Damages Caps Need Not Be Pled As Affirmative Defense

Posted in Case Summaries, Discrimination, Harassment, Retaliation
In a non-employment case that is nonetheless important for labor and employment lawyers, the Texas Supreme Court has held that statutory damage caps under the Texas Civil Practice and Remedies Code need not be plead as an affirmative defense by the defendant.  While the case applies to the damage caps of Chapter 41 of the… 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

U.S. Supreme Court Adopts Objective Test for Determining Title VII Supervisor Status

Posted in Case Summaries, Harassment
The U.S. Supreme Court adopted an objective test for determining an employee’s Title VII “supervisory status” in Vance v. Ball State University. The question in Vance was what level of authority must an individual have to qualify as a “supervisor” for purposes of Title VII vicarious liability. This is an important issue because the employee’s status often… 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 Rejects Case Asserting Sex-Stereotyping Theory of Sexual Harassment

Posted in Case Summaries, Harassment
In another same-sex harassment opinion, the Fifth Circuit reversed a substantial jury verdict in favor of a steel worker who claimed he was subjected to unlawful sexual harassment by his same-sex supervisor. Woods was employed as an ironworker for the company in 2005. In 2006 he was assigned to work on a crew responsible for repairing… 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

Fifth Circuit Case Demonstrates Consequences of Failing to Make Prompt and Thorough Investigations of Employee Complaints

Posted in Case Summaries, Harassment
A new Fifth Circuit case reveals the consequence that can occur when an employer and its managers fail to take harassment complaints seriously; fail to promptly and thoroughly investigate the complaints; and reach conclusions following the investigation that just plain wrong.   In Cherry v. Shaw Coastal Inc., a male employee (Cherry) complained that his immediate male supervisor… Continue Reading

What Rights Does the Accused Have in Response to a False Harassment Complaint?

Posted in Harassment, Human Resources, News & Commentary
I have already written about the Herman Cain story and won’t opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story.  The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint… 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

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

USERRA Provides No Cause of Action for Hostile Environment Discrimination

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

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

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

City of Houston Adds Sexual Orientation and Gender Identity as Prohibited Types of Discrimination

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

EEOC and Law Firm go Toe-to-Toe over Administrative Subpoena for Law Firm Documents in Sexual Harassment Investigation

Posted in Harassment, Human Resources
When investigating a charge of discrimination, the EEOC has the authority to issue administrative subpoenas requiring employers to produce relevant information.  This power, however, is rarely used because most employers voluntarily comply with the EEOC’s reasonable requests for information.  In San Antonio, a law firm respondent is testing the EEOC’s powers to require information be produced… Continue Reading

Supreme Court Holds Collective Bargaining Agreement Can Require Arbitration of Age Discrimination Claims

Posted in Arbitration, Discrimination, Harassment, Retaliation
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… Continue Reading

EEOC Charge Filings Surged in 2008

Posted in Discrimination, Harassment, Retaliation
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… Continue Reading