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 all City services, facilities, programs and activities.

Specifically prohibited the policy are the following:

  • Failing or refusing to hire, recruit, appoint, promote or train any individual or otherwise discipline, demote, transfer lay off, fail to recall, or terminate any individual because of such individual’s sexual orientation and/or gender identity;
  • Limiting, segregating or classifying employees or applicants in a way that would deprive, or tend to deprive, any individual of equal opportunity or otherwise adversely affect the status of the employee or applicant because of the individual’s sexual orientation or gender identity;
  • Failing or refusing to recommend any contract or purchase for award based on a contractor or vendor’s sexual orientation or gender identity;
  • Failing to make available to any member of the public or employee use of a city facility or receipt of city service because of their sexual orientation or gender identity;
  • Impeding access by an employee or member of the public to a city restroom facility that is consistent with and appropriate to that person’s expression of gender identity;
  • Limit participation by any city employee or member of the public in any city-sponsored activity because of the person’s sexual orientation or gender identity in which they would otherwise be permitted to participate.

 You can access a full copy of the Executive Order here.

Yesterday the First District Court of Appeals in Houston issued an opinion I first thought was an April Fool’s joke.  However, since this opinion hasn’t been withdrawn, I presume the Court was serious in holding that the Lilly Ledbetter Fair Pay Act , an act of Congress that has the effect of extending the statute of limitations to certain pay practices, applies to claims filed under the Texas Commission on Human Rights Act.  The Court cites two federal district court opinions similarly holding, but this is the first state court of appeals to apply the federal amendment to Title VII to the state law.  This holding is even more surprising to me given that the Texas Legislature, in its last term, considered adopting provisions similar to the Ledbetter Act, but did not pass those provisions.

The effect of the Houston Court’s opinion is to render state law claims that would have been previously time barred as timely. You can read the First District Court of Appeals’ decision in Prairie View A & M University v. Chatha here.

 

I wrote about an unusual dispute between the EEOC and a San Antonio law firm where the EEOC sought enforcement of an administrative subpoena seeking law firm records in connection with a charge of discrimination filed by a former employee of the firm.  You can read that post here.

Well, like Spring itself that blows in like a lion and out like a lamb, the law firm has provided the information sought by the EEOC subpoena and the EEOC has requested dismissal of its application to enforce the administrative subpoena (which has been granted).  Much ado about nothing after all.  You can review the EEOC’s Motion to Dismiss here.

Since at least 1995 Texas law has provided that women has a right to breastfeed in public in any place in which they are legally authorized to be.  Last week, the health care reform signed by the President amended the Fair Labor Standards Act to require covered employers to provide reasonable break time for nursing mothers to express breast milk for nursing children.  The FLSA is the federal law that requires most employers to pay minimum wages and overtime for hours worked in excess of forty per week.

The new law provides that:

  • Employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth;
  • Provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk;
  • Break time is unpaid in Texas (unless of course the employee is an exempt employee entitled to full salary in workweeks where any work is performed).

The law does not apply to employers with 50 or fewer employees if “the requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

As I wrote yesterday, the Wage & Hour Division of the U.S. Department of Labor has ceased issuing detailed, fact-specific opinion letters.  In the first of the Administrative Interpretations the Division will issue in lieu of opinion letters, the Division has concluded that most mortgage loan officers will not qualify for the administrative exemption to the overtime provisions of federal law.

For purposes of the Administrator’s Interpretation, mortgage loan officers includes employees typically having job titles of mortgage loan representative, mortgage loan consultant and mortgage loan originator.  The interpretation outlines the typical duties performed by the employees as receiving internal leads; contacting potential customers; receiving contacts from customers generated by direct mail or other marketing activity; collecting required financial information from customers (including income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments and liens); assessing loan products available for customers and discussing those products with customers; and completing and forwarding completed documents to underwriters or loan processors for closing.

Based on a lengthy review of the typical duties of a mortgage loan officer and the case law analyzing such positions, the Administrator concluded that the typical mortgage loan officer has the primary duty of making sales for their employers and therefore do not qualify for the administrative exemption.  You can access and review the full interpretation here.

The U.S. Department of Labor’s Wage & Hour Division announced it will no longer issue fact-specific definitive opinion letters in response to questions submitted by individuals and organizations.  According to the Division, its opinion letters provide only limited guidance to broad categories of employers and employees where slight factual differences in the facts assumed in the letter could result in a different outcome. 

In the future, the Division intends to issue Administrative Interpretations to "set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue"  and to "clarify[] the law as it relates to an entire industry, a category of employees, or to all employees."

The Division will continue to respond to requests for opinion letters with references to statutes, regulations, interpretations and cases that relevant to the request but without analysis of the specifics facts presented. You can access the Divisions new Administrative Interpretations page here.

With Congress finalizing a health care reform bill to send to the President, what exactly will the 2,000 page bill mean for Texas employers?  As reported today by U.S.A Today, employers should expect, among other things:

Only time will tell what the true cost of this reform will be for employers and whether the benefits cost.  

This week the Department of Labor published a poster that must be used by all employers employing employees under H-2A visas.  H-2A visa holders are non-immigrant employees employed in temporary or seasonal agricultural jobs.  A copy of the required poster (in English) can be accessed here.  (Spanish here)  This poster is required by federal rules published February 12,  2010 and must be posted in the place of employment both in English and any other language other than English spoken by a significant portion of the workers. 

For more information on the eligibility requirements to employ H-2A employees, see the Department of Labor’s fact sheets that can be accessed here.

In a discrimination case it is very important to determine whether the plaintiff is alleging direct or circumstantial evidence of discrimination.  This is important because the standard by which a court determines if the case should proceed to trial or not depends on this determination. In Jackson v. Cal-Western Packaging Corp., the U.S. Court of Appeals for the Fifth Circuit applied the Circuit’s test for determining whether an age-related comment constitutes direct evidence of discrimination or is merely a stray remark that may constitute circumstantial evidence of discrimination. 

Jackson, a sixty-nine year old employee, had his employment separated following an internal and external harassment investigation that resulting in a determination that he violated the company’s anti-harassment policy.   He brought suit alleging that he was terminated because of his age.  His primary piece of evidence supporting his claim was a comment the decisionmaker allegedly made a year earlier.  According to Jackson, the decisionmaker told another coworker that Jackson was an "old, gray-haired fart" and that the coworker would be in charge when Jackson retired.

As the Court reiterated, to constitute direct evidence of discrimination the comment must 1) relate to the protected class of persons that the plaintiffs belongs; 2) be proximate in time to the complained of adverse employment action; 3) made by a person with authority over the employment decision at issue; and 4) relate to the employment decision at issue. Because the comment was made more than a year before Jackson’s termination and did not relate to the decision at issue, the court held the comment did not constitute direct evidence of age discrimination. 

Absent direct evidence of age discrimination Jackson was forced to prove, by circumstantial evidence, that the company’s stated reasons for his termination were false or untrue.  Stated another way, he had to show that the company did not reasonably believe that he violated the anti-harassment policy (sometime referred to as the "honest belief rule").  Given that the company conducted both internal and external investigations and that witnesses of both sex corroborated the claims made against Jackson, there was no evidence that the company did not reasonably believe that he violated the anti-harassment policy nor evidence that the company’s stated reasons for terminating Jackson’s employment were false.  Consequently, the Court affirmed the judgment in favor of the employer.

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 via administrative subpoena.  In EEOC v. Malaise law firm, the EEOC is seeking the names and addresses of employees working for the law firm as potential witnesses.  The request was made in connection with the Commission’s investigation of a claim of sexual harassment.   The firm responded that this information was not relevant, constituted a fishing expedition, and invaded the privacy rights of nonparties   The EEOC persisted in its efforts to obtain the information and ultimately issued an administrative subpoena to the firm.  The law firm filed objections to the subpoena which the EEOC overruled (Yes, the EEOC gets to make the rulings on objections made to its subpoenas).  The law firm still failed to comply with the subpoena and the EEOC filed a Petition to Enforce the subpoena in the U.S. District Court. 

The interesting part about the fact the EEOC had to go to court to get this information is that the Commission’s court filing shows some insight into how it goes about investigating charges of discrimination. You can read the EEOC’s Petition to Enforce here and the affidavit in support of the petition (with all of the fun-to-read exhibits containing the charge and letters between the firm and EEOC)  here.