Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Discrimination

Subscribe to Discrimination RSS Feed

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

Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?

Posted in Disability, Discrimination
There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments… Continue Reading

El Paso EEOC Sues Starbucks over Height Challenged Barista

Posted in Disability, Discrimination
In a suit you don’t see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC’s Complaint: Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life… Continue Reading

State of Texas Immune from Worker’s Compensation Retaliation Claims

Posted in Case Summaries, Discrimination, Retaliation, Workers' Compensation
In today’s Supreme Court of Texas orders, the Court held that the State of Texas (including its political subdivisions such as counties) is immune from worker’s compensation retaliation suits.  You can read a full copy of the Court’s opinion in Travis Central Appraisal District v. Norman here.… 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

Anti-Discrimination Provisions Related to Prior Bankruptcy Do Not Apply to Applicants

Posted in Case Summaries, Discrimination
Federal law prohibits private employers from terminating the employment of or discriminating with respect to employment against an individual because the individual is or was a debtor under the Bankruptcy Code.  In a recent decision of the U.S. Court of Appeals for the Fifth Circuit, the appellate court held that the anti-discrimination provisions of the… Continue Reading

Supreme Court Blesses Cat’s Paw Theory of Discrimination

Posted in Case Summaries, Discrimination, Judicial Updates, Retaliation
The U.S. Supreme Court recently considered the circumstances when an employer may be liable for employment discrimination based on the unlawful, discriminatory animus of an employee who influenced, but did not make, an ultimate employment decision.   This theory is commonly referred to as the Cat’s Paw theory derived from fable about the monkey who convinces the cat… Continue Reading

Fort Worth Court of Appeals Enforces Mutual Waiver of Jury Trial

Posted in Case Summaries, Discrimination, Human Resources, Judicial Updates, Jury Waivers
I’ve written several posts advocating the advantages of employer’s use of waivers of jury trials to resolve employment disputes with employees.  (See posts here and here).  To recap, the mutual waiver of jury trial provides the employer and employee a fair way to resolve employment disputes without some of the disadvantages that other forms of alternative… Continue Reading

Supreme Court of Texas Agrees to Hear Two Employment Cases

Posted in Case Summaries, Discrimination, Judicial Updates
The Supreme Court of Texas has agreed to hear argument in two employment cases.  In Prairie View A&M University v. Diljit K. Chatha, (No. 10-353) the Court agreed to consider whether the 180-day statute of limitations for a government employee’s complaint about discriminatory pay begins from the date of the first paycheck reflecting the decision or the (earlier) date on… Continue Reading

Supreme Court Recognizes Third-Party Retaliation Claims under Title VII

Posted in Case Summaries, Discrimination, Judicial Updates, Retaliation
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… Continue Reading

New Filing Reminds Employers of Employee Protection for Jury Service

Posted in Discrimination, Retaliation
Barry Shlachter of the Fort Worth Star Telegram reports today on an employment dispute you rarely see these days.  Shlachter profiles a new lawsuit filed by Saginaw resident Corey Gillespie against Dee King Trucking of Amarillo.  According to the article, Gillespie (a relatively new employee (and importantly not an independent contractor) with the company) was summoned for jury duty in… Continue Reading

Employment Bills Enrolled the Week of January 11, 2011

Posted in Discrimination, Legislation
The blog has been updated with bills enrolled in the Texas Legislature the week of January 11, 2011 likely to effect Texas employers.  This week’s bills include bills targeted at prohibiting workplace smoking; prohibitions against sexual orientation discrimination; payment of wages through payroll card accounts and a bill to require employers to use the federal… Continue Reading

Dallas Court Vacates Arbitration Award in Discrimination Case Because of Arbitrator’s Failure to Disclose Prior Contacts with Party Representative

Posted in Arbitration, Case Summaries, Discrimination, Judicial Updates
It is pretty difficult for a party to get an adverse arbitration award reversed or vacated.  A recent Dallas Court of Appeals decision shows the rare instance were such a reversal occurred.  In Alim v. KBR (Kellogg, Brown & Root) –Halliburton, the Dallas court held that an arbitrator’s failure to disclose, in an employment discrimination, breach of contract… 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

Texas Court Holds Lilly Ledbetter Principles Inapplicable to Claims Arising Under State Law

Posted in Case Summaries, Discrimination, Judicial Updates
The Fort Worth Court of Appeals ruled that the provisions of the federal Lilly Ledbetter Fair Pay Act of 2009 extending the charge filing deadlines for certain pay discrimination claims should not be automatically applied to pay discrimination claims arising under state law. In Tarrant Regional Water District v. Villanueva, Tamara Villanueva brought suit against the the District… Continue Reading

Texas Supreme Court Holds State Agencies Immune from FMLA Self-Care Lawsuits

Posted in Case Summaries, Discrimination, Leave of Absence
In its first FMLA opinion, the Texas Supreme Court held that agencies of the State of Texas cannot be sued for FMLA violations arising out of an employee’s FMLA leave taken for his own serious health condition.   In University of Texas at El Paso v. Herrera, the Supreme Court of Texas held that, unlike the family care provisions of the… Continue Reading

Can Mega-Class Adjudication of Discrimination Claims Ever Be Fair to Employers?

Posted in Discrimination
Mega class-actions attempting to adjudicate discrimination claims on behalf of thousands or tens of thousands of class members are often fundamentally unfair to employers and violate their right to due process. The recent $250M jury verdict against Novartis (5,200 potential class members) and the affirming of a class certification order of up to 1.5 million Wal-Mart workers for various pay… Continue Reading