By Russell Cawyer on Posted in Disability,Discrimination,News & CommentaryOne of the consequences of the Americans with Disabilities Amendment Act’s expanded definition of disability is that employers are facing a much larger number of accommodation requests and therefore a greater number of potential accommodations. Anecdotally, I have seen a sharp uptick in the number of employees asking employers to bring animals to the workplace claiming… Continue Reading
By Russell Cawyer on Posted in Discrimination,News & Commentary,Wage & HourYesterday, the EEOC published its four-year Strategic Enforcement Plan for fiscal years 2017 through 2021. The Plan is the Commission’s list of areas of priority where it intends to focus its resources in the next four years. The purpose of the Plan is to identify those areas the Commission believes are likely to have a… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Discrimination,RetaliationPlaintiffs and employers often dispute when an employee’s time period for filing a charge of discrimination commences. Plaintiffs argue that it commences on the date the adverse action is effective (e.g., the termination date) where employers often argue that it commences earlier when the employee is advised of the decision (i.e., notice of termination that is effective… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Discrimination,Harassment,RetaliationIn 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
By Russell Cawyer on Posted in Discrimination,Judicial Updates,Reasonable Accommodation,ReligionThis past term saw the Supreme Court issue four opinions in labor and employment cases. In case you missed them, the following is a brief summary of the holdings from those cases. EEOC v. Abercrombie & Fitch Holding that Title VII’s prohibition against refusing to hire an applicant to avoid accommodating a religious practice that could be accommodated without… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Disability,DiscriminationLast month the Fifth Circuit resolved an intra-Circuit split on the appropriate prima face case that should be used in a discrimination case under the Americans with Disabilities Act. In EEOC v. LHC Group, Inc., the EEOC brought suit on behalf of a home health field nurse who was terminated after she was rendered unable… Continue Reading
By Russell Cawyer on Posted in Case Summaries,DiscriminationLast Friday, Halloween, the Texas Supreme Court delivered defendants a “treat” in the form of a mandamus opinion articulating the standard for when discovery requests seeking information related to claims other than the plaintiff’s claims crosses the line from seeking relevant information into an impermissible fishing expedition. In In re National Lloyds Insurance Company, the… Continue Reading
By Russell Cawyer on Posted in Age,Case Summaries,DiscriminationAn 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,ReligionThe 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
By Russell Cawyer on Posted in Discrimination,News & CommentarySeveral 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,RetaliationBoth 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
By Russell Cawyer on Posted in Discrimination,Harassment,Human Resources,RetaliationOne 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
By Russell Cawyer on Posted in Case Summaries,Disability,Discrimination,Harassment,RetaliationIn 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
By Russell Cawyer on Posted in Case Summaries,DiscriminationLast 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,Wage & HourI 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
By Russell Cawyer on Posted in Age,Case Summaries,Discrimination,Judicial Updates,Labor-Management RelationsLast 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
By Russell Cawyer on Posted in Age,Case Summaries,DiscriminationThe 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,Harassment,RetaliationPrevailing 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
By Russell Cawyer on Posted in Discrimination,Harassment,Human ResourcesYesterday 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
By Russell Cawyer on Posted in Case Summaries,DiscriminationYesterday, 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
By Russell Cawyer on Posted in DiscriminationOn 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
By Russell Cawyer on Posted in Discrimination,News & CommentaryLast 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
By Russell Cawyer on Posted in Age,Discrimination,Judicial UpdatesLast 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
By Russell Cawyer on Posted in Discrimination,Harassment,Human ResourcesPrompt 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
