Texas courts routinely look to and take guidance from federal law when evaluating claims under the Texas Commission on Human Rights Act. The TCHRA is the Texas state law that prohibits employment discrimination on the basis of disability (and other status) and requires employers to provide reasonable accommodation to qualified individuals with disabilities.
In a departure from absolute to blind following of federal precedent, and departing from one Texas courts of appeals addressing the issue, the Austin Court of Appeals held that an employee’s request for reasonable accommodation of a disability does not constitute protected activity sufficient to satisfy a plaintiff’s prima facie case of retaliation.
In Texas Department of Transportation v. Lara, a twenty year employee took a leave of absence for surgery, recovery and complications related to gastrointestinal distress. When the Department advised Lara that he had exhausted all leave available to him, Lara made several requests to extend his unpaid leave of absence. Some requests were granted but subsequent requests were eventually denied and Lara’s employment was terminated. Six months after the termination, Lara filed a charge of discrimination alleging disability discrimination and retaliation.
In the trial court, the Department argued that Lara’s retaliation claim must be dismissed because Lara engaged in no protected activity. The trial court denied the Department’s request. On appeal, the Third District Court of Appeals held that Lara had not engaged in any protected activity and his retaliation claim had to be dismissed. In analyzing the argument, the Court noted that the only two potential bases for Lara’s protected activity were his charge of discrimination (filed six months after his termination) and his requests for extension of his unpaid leave of absence. While the charge of discrimination was clearly protected activity, it could not save a retaliation claim because there was no causal connection between the termination and the filing of the charge occurring six months later.
Analyzing important differences between the ADA and TCHRA, the Court also held that requests to the employer for reasonable accommodation do not constitute protected activity under the TCHRA as a matter of law. The ADA makes it unlawful to interfere with any individual’s exercise of any right granted or protected by the Act. This, according to the Court, included interfering with or retaliating against an employee because of requests for reasonable accommodation. On the other hand, the Court noted that the TCHRA limits protected activity to opposing a discriminatory practice, making or filing a complaint or testifying, assisting or participating in an investigation. Notably absent from the Texas definition was the prohibition against interfering with any right granted or protected by the chapter. Given these differences between the ADA and the TCHRA statutory language, the Austin Court of Appeals held that requests for accommodation were not legally protected activity that would support a retaliation claim.
A copy of the majority opinion can be downloaded here.
The concurring and dissenting opinion is here.