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

Yesterday I had the privilege to serve on a panel discussion of employment defense attorneys covering Title VII Litigation: Persistent Evidentiary Challenges.  We had lawyers from twenty-two states registered for the program.  If you have an evidentiary question involving a discrimination, retaliation or harassment claim, these materials may provide you a head start on your research or quick answer to your issue.

You can download a copy of the presentation materials here.

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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In reading a recent Fifth Circuit opinion affirming the dismissal of a employee's claim of racial harassment involving the display of a noose, I am reminded of Mark Twain's quote, "If you tell the truth, you don't have to remember anything."  Its good advice to live by and even better advice for deponents and witnesses.

Nickey Brown brought a Title VII racial harassment claim against his employer, Oil States Skagit Smatco, alleging that his co-workers made racially derogatory remarks about him, subjected him to offensive racial graffiti and displayed a noose in his workplace.  These allegations often have EEOC Cause Finding and large financial settlement written all over them.  However, in this case, the district court dismissed Brown's claims.  Why?  Brown provided materially inconsistent explanations for why he left his employment with his employer.

Not only was Brown a party to his Title VII action against his employer, he was also a party in a personal injury lawsuit.  In a deposition for his personal injury lawsuit he testified that he left employment because he was in pain all the time due to the injuries sustained in the automobile accident.  However, in this racial harassment case he testified that he left his job because of the severe harassment he endured.  Because of the directly inconsistent testimony, the trial court sanctioned Brown with dismissal of his lawsuit.  The Fifth Circuit upheld this decision.  You can read a full copy of the opinion here.

Follow me on Twitter @RussellCawyer.

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Imagine this, its Friday and you are sitting in your office as Director of Verizon’s newly created Office of Reasonable Accommodation.  An employee, I’ll call him Joe, walks into your office.  Joe tells you he's recently converted to the Church of the Flying Spaghetti Monster (i.e., he is now a Pastafarian); that Friday’s are his religion’s holiday; and that his religion requires him to wear a spaghetti strainer on his head at all times. He requests, as a reasonable accommodation of his religious beliefs, all Friday’s off from work and to have the photograph on his employee identification badge retaken so that he be shown wearing a colander on his head. What do you do?

Most employment civil rights laws require that employers treat all employees equally without regard to age, sex, color, race, national origin etc.  The ADA and Title VII's protection of employee's religious beliefs, however, may require employers to treat employees differently (i.e., reasonable accommodation).  Here, Joe's request to accommodate his beliefs (which appear sincerely held) can only be denied if accommodating the belief would cause undue hardship to the employer.  Undue hardship under Title VII is different than under the ADA.  Under Title VII, a proposed religious accommodation is often an undue hardship where it requires the employer to incur more than de minimus expense; violates a CBA, law or valid seniority system; ignores safety risks or requires other employees to work longer or harder. 

Applying these rules to Joe's request, unless you can establish that for security reasons employee photographs on access badges must be taken without headwear, you should probably tell Joe to get his colander while you get out the Kodak.  With respect to the request for all Fridays off, unless Joe's request would violate a CBA provision regarding bidding for schedules or would otherwise make Joe's co-workers work longer or harder, Joe should probably be allowed to take his Fridays off.

Follow me on Twitter @RussellCawyer.

Church of Flying Spaghetti Monster Resources Facebook and Wikipedia.

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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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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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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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