Employment Law | The Law Offices of Gregory D. Jordan

How Texas Medical Marijuana Laws Affect Employers and Employees

Over the past decade, states across the country started to legalize both medical and recreational use of marijuana. While Texas has yet to completely legalize marijuana for non-medical use, the Compassionate Use Act allows qualifying patients to purchase marijuana for medical use. However, this has led to some confusion about how Texas’ medical marijuana laws should be enforced in the workplace. Can employees use marijuana while off-duty? Can employers prevent employees from using marijuana even if they have a qualifying health condition? Do Texas employers have the right to screen for marijuana use among employees? These are a few of the questions that both employers and employees have given the recent expansion of the Compassionate Use Act.

Who Qualifies for Medical Marijuana in Texas?

The Texas Compassionate Use Act allows patients with certain qualifying health conditions to obtain a prescription for marijuana. However, qualifying patients can currently only purchase low-THC cannabis products containing .5 percent THC or less. The qualifying conditions under the Compassionate Use Act include:

  • Amyotrophic lateral sclerosis
  • Autism
  • Epilepsy
  • Incurable neurodegenerative disease
  • Multiple sclerosis
  • Seizure disorders
  • Spasticity
  • Terminal cancer

However, as of September 1, 2021, the Compassionate Use Act will expand to cover all forms of cancer and patients with post-traumatic stress disorder (PTSD). Additionally, the maximum amount of THC available in medicinal cannabis products will increase from 0.5 percent to 1 percent. While this is still a very low THC content (most strands of marijuana have a THC content between 10 and 20 percent), it stands to reason that increasing the amount of allowable THC in cannabis products will increase the number of positive drug tests among Texas employees.

Do Medical Marijuana Patients Have Any Employment Protections?

While Texas law may allow employees to consume marijuana if they have a qualifying medical condition, marijuana is still illegal under federal law. Thus, employers can rely on the federal prohibition against marijuana use to justify a marijuana-free workplace.

The Compassionate Use Act does not contain any protections for qualifying patients who treat their conditions with marijuana. Thus, absent a new state law addressing an employer’s ability to screen for marijuana, refuse to hire medical marijuana patients, or fire employees who test positive for marijuana, employers may be free to do as they see fit.

However, employers should use care when taking any adverse employment action against an employee who is certified to use medical marijuana under the Compassionate Use Act, as this area of the law is rapidly changing. For example, an employee eligible for medical marijuana may argue that an employer’s failure to engage in the interactive process when they request a reasonable accommodation constitutes disability discrimination. While it is unclear that allowing medical marijuana use would be considered a “reasonable accommodation” under the current state of the law, the employee may premise their claim on the underlying disability rather than the marijuana use.

While Texas courts have not issued many binding opinions on the topic, this will likely change in the near future. It also seems that each election cycle, there are several marijuana-focused bills up for review. The most important piece of advice for employers is to consistently review the current state of the law and revise their marijuana policies accordingly.

What About an Employee’s Off-Duty Recreational Use of Marijuana in a State Where It Is Legal?

On a related topic of interest to many employers and employees, if an employee takes a trip to Colorado, Massachusetts, California, or any other state where recreational marijuana is legal, they may be putting their job on the line if they choose to consume the drug. Under Texas law, employers are free to prohibit illegal drug use, whether it is on-the-job or off-duty.

However, employers must be careful to follow a neutral drug testing policy when testing employees for marijuana. While there are few restrictions on an employer’s ability to drug test employees, an employer cannot selectively test employees based on the employer’s belief that an employee is more likely to use marijuana. Instead, an employer must develop a reasonable drug-testing program that is applied in an even-handed manner.

Contact an Experienced Austin Employment Lawyer for Immediate Assistance

Medical marijuana laws are quickly changing in Texas and across the country. If you have questions about an employer’s rights and obligations pertaining to medical marijuana use in the workplace, reach out to Austin employment lawyer Gregory D. Jordan. Attorney Jordan has decades of experience handling some of the most challenging employment cases, including discrimination, wage and hour violations, and more. He represents both employers and employers, providing him with a comprehensive knowledge of the law from both perspectives, which he uses to his clients’ advantage. To learn more and to schedule a consultation today, call 512-419-0684. You can also reach Attorney Jordan through his online form.

Court Issues Opinion in Texas Wrongful Termination Case

Last month, a state appellate court issued an opinion in a Texas wrongful termination case discussing whether an employee presented sufficient evidence to survive his employer’s motion for summary judgment. Ultimately, the court found that the plaintiff was an “at-will” employee, and no evidence he presented indicated that he was terminated for an impermissible reason.

The Facts of the Case

The plaintiff worked as a licensed vocational nurse at a skilled rehabilitation center. The plaintiff was fired based on his interactions with one of the residents. However, the plaintiff’s story was vastly different from the story presented by the facility.

According to the plaintiff, one of the residents in the facility attacked another resident. The facility consulted with doctors, and it was decided that the facility would give the unruly resident a shot to calm him down. The plaintiff was asked to administer the shot. As the plaintiff entered the resident’s room, the resident threw a table at the plaintiff. Although the resident was screaming, the plaintiff successfully administered the shot. However, as the plaintiff was giving the resident the shot, the resident struck him in the head.

The facility offered a very different version of the events leading up to the plaintiff’s termination. The facility agreed that the plaintiff was asked to administer a shot to an unruly resident. However, according to the facility, it was the plaintiff who struck the resident in the head. In fact, as a result of the incident, the plaintiff was later charged with a felony.

The facility immediately suspended the plaintiff, pending an investigation. Once the investigation wrapped up, the facility fired the plaintiff. The plaintiff then filed a wrongful termination claim. In response, the facility filed a motion for summary judgment, arguing that the plaintiff’s claim could not succeed under the law and should be dismissed by the judge.

The Employer’s Motion for Summary Judgment

In its motion, the employer claimed that the plaintiff was an at-will employee. Because of this, the facility argued it could fire the plaintiff for any reason or no reason at all. The plaintiff’s position was that a contract was formed when the employer gave him an employee handbook. He also claimed that, because the allegations leading to his termination were false, and that because he was fired based on incorrect information, he was wrongfully terminated.

The court began its analysis by explaining the general rule that “absent a specific agreement to the contrary, employment may be terminated by the employer or employee at will, for good cause, bad cause, or no cause at all.” Here, the court found that the employee handbook did not change the nature of the employee-employer relationship, and that the plaintiff was an at-will employee. The court noted that the manual specifically stated that “the relationship between employees and [the facility] is an at-will employment relationship” and that either party can end the relationship at any time without reason or prior notice.

That being the case, the court went on to determine if the facility fired the employee for an impermissible reason. While an employer can generally fire an at-will employee for “any reason, or no reason at all,” there are exceptions. For example, an employer cannot base their decision to fire an employee on the employee’s race, color, disability, religion, filing of a worker’s compensation claim, union membership or non-membership, active duty in State military forces, jury service, or the employee’s refusal to perform an illegal act.

Here, however, the court noted that the plaintiff did not raise any of these claims. Instead, the plaintiff argued that he was wrongfully terminated because the facility relied on false information when it fired him. However, because he was an at-will employee, even if the information was false, it would not have rendered the employer’s decision an illegal one.

Contact a Travis County Employment Attorney

If you are an employee or employer involved in a Texas employment dispute, contact the Law Offices of Gregory D. Jordan. Attorney Jordan is a skilled Texas employment attorney with extensive hands-on experience representing both employees and employers in a wide range of employment matters. Since 1989, Greg Jordan has been helping clients obtain the results they desire through his effective representation. He commands an in-depth understanding of the various state and federal employment laws that govern employment claims and is ready to put this advanced knowledge to use in your case. To learn more, and to schedule a consultation, call 512-419-0684 today.

U.S. Supreme Court Issues Opinion in Landmark Sex Discrimination Lawsuit

Earlier this year, the United States Supreme Court issued a written opinion in an employment discrimination case that will have significant implications in Texas, as well as throughout the county. The opinion involved the interpretation of Title VII of the Civil Rights Act of 1964. Specifically, whether the Act’s prohibition against discrimination on the basis of an employee’s “sex” precludes an employer from firing an employee for being gay or transgender. The Court answered the question in the affirmative, finding that employers cannot discharge an employee for being gay or transgender, even if other motivations supported the employer’s decision.

Background Into the Civil Rights Act

The Civil Rights Act of 1964 (CRA) was the country’s first civil rights legislation, protecting against discrimination based on an employee’s race, color, religion, sex, or national origin. However, initially, the protections under the CRA were weak and under-inclusive. So, while the CRA was an important step toward seeking a more equal workplace, it was not a complete solution. For example, the Act did not apply to discrimination based on a worker’s age or disability status. Additionally, although the Act purported to protect against sex discrimination, it was subsequently interpreted by the courts not to protect against pregnancy discrimination and, until recently, an employee’s status as gay or transgender.

Of course, subsequent legislation filled in some of the holes left by the CRA. The Age Discrimination in Employment Act of 1967 provides protection for employees and job applicants over the age of 40. The Americans with Disabilities Act, passed in 1990, protects workers who are experiencing disability. And the Pregnancy Discrimination Act of 1978 amended the CRA to “prohibit sex discrimination on the basis of pregnancy.”

The Supreme Court’s Recent Opinion

The Court’s opinion in Bostock v. Clayton County, is a consolidation of three similar cases, all arising from different states. Gerald Bostock was a child welfare advocate in Clayton County, Georgia. After he began playing in a gay softball league, he was fired for engaging in conduct “unbecoming” of an employee. Donald Zarda was a skydiving instructor who was fired days after mentioning that he was gay. And Aimee Stephens, who presented as a male when she was hired, was fired after telling her employer that she intended to “live and work full-time as a woman.”

In each of these three cases, the employee was fired at least in part for either being gay or transgender. All three employees filed employment discrimination claims against their employers under Title VII of the CRA. Oversimplifying the procedural background of each individual case; two of the cases were allowed to proceed toward trial while one was dismissed as a matter of law. The question that was eventually presented to the United States Supreme Court was whether Title VII to the CRA prevents an employer from making an employment decision because an employee is gay or transgender. In other words, does the CRA’s language precluding discrimination based on “sex” extend to an employee’s sexual orientation or status as a transgender person.

The Court’s Analysis

The Court began its analysis by noting that the CRA precludes employees from making an employment decision “because of” an employee’s sex. In its preliminary discussion of the applicable law, the Court reviewed several other opinions to glean a general rule regarding what is covered under the CRA.

First, the Court noted that it is “irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” In making this statement, the Court was pointing out that it does not matter if the employer does not believe that they are engaging in sex discrimination. The Court explained “when an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.”

Next, the Court went on to explain that the plaintiff’s sex does not need to be the only criteria leading to an employer’s decision. In other words, an employer cannot reframe their reason or firing an employee to be based on some non-protected trait.

Finally, the Court held that an employer cannot avoid the requirements of Title VII by showing that it treats men and women equally. The Court noted, “an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.”

In coming to its conclusion, the Court rejected each of the employers’ arguments. For example, the employers argued that firing an employee for being gay or transgender was not “sex” discrimination because it had nothing to do with an employee’s sex. In support of their argument, the employers noted that each of the employees, if asked, would likely have explained that they were fired for being gay or transgender (rather than for being male or female). However, the court reiterated that an employment discrimination charge does not require an employee to prove that the employer intended to discriminate, only that the employer acted in a discriminatory manner.

The Court also rejected the employers’ argument that public policy supported their actions. Specifically, the employers argued that, when enacted, few would have thought the CRA covered gay and transgender employees. The Court noted that “people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration.” And the Court even acknowledged that these cases fell outside the “principal evil” at which the CRA was directed. However, rather than use that as a reason to minimize the protections afforded by the CRA, the Court explained that it “demonstrates the breadth of the legislative command.”

In the end, the Court’s holding was simple; employers cannot base an employment decision on an employee’s status as gay or transgender.

Contact an Experienced Austin Employment Law Attorney for Immediate Assistance

Whether you are an employer trying to navigate the new changes in the law, or an employee who believes that your employer illegally fired you, contact the Law Offices of Gregory D. Jordan for help. For over 30 years, we have been helping individuals and businesses with complex employment law issues, including claims of employment discrimination, wrongful termination, retaliation, wage and hour violations and more. To learn more about how we can help you with your situation, call 512-419-0684 to schedule a consultation today.

COVID-19 and How It May Impact the Rights of Texas Employers and Employees

The COVID-19 pandemic has dramatically impacted our country since arriving on United States soil. City, county, state and federal lawmakers have scrambled to keep up with the rapid spread of the virus. In Texas, Governor Abbott signed a state-wide stay-at-home order, requiring the closure of schools, non-essential businesses and many government offices. Cities and counties have issued their own orders, and Governor Abbott has revised and amended his orders. These actions have created many concerns regarding Texas employment law.

Business owners and employees face different, yet equally serious, concerns about how the novel coronavirus and the state’s response to it will affect them. Lawmakers have stepped in to address some of these concerns.

The Families First Coronavirus Response Act

One of the most important new laws that Texas employers and employees should familiarize themselves with is the Families First Coronavirus Response Act (Families First Act). The Families First Act requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The amount of leave employers that are covered by the Act must provide is dependent on the reason for the requested leave:

Two weeks of paid sick leave at an employee’s regular rate of pay must be provided to:

  • Employees who are unable to work because they are quarantined pursuant to state, federal or local orders, or have been ordered to do so by a healthcare professional; or
  • Employees who are experiencing symptoms of COVID-19 and are seeking a medical diagnosis.

Two weeks of paid sick leave at two-thirds of an employee’s regular rate of pay must be provided to:

  • Employees who need to take time to care for an individual who is in quarantine;
  • Employees who need time to care for a child whose school is closed due to concerns surrounding COVID-19; or
  • Employees who are experiencing a substantially similar condition.

Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds of an employee’s regular wage must be provided to:

  • Employees who have been with the organization for 30 or more days and are unable to work because they must care for a child whose school or childcare provider is closed due to the COVID-19 pandemic.

The Act covers the period between April 1, 2020 and December 31, 2020 and only applies to covered employers. The Act defines a covered employer as:

  • Public employers, and
  • Private employers with fewer than 500 employees.

Notably, small businesses with fewer than 50 employees may be exempt from the Families First Act’s provision regarding paid leave for an employee’s child-care needs, if providing such leave would jeopardize the business’ continued viability. Additionally, all employees, regardless of the amount of time they have been employed with an organization, are eligible for the two weeks of paid sick leave. However, only employees who have worked for the organization for more than 30 days are eligible for the 10 weeks of expanded family and medical leave.

The Act also imposes limits on the total amount employers are required to pay. For example, employees who cannot work because they are quarantined can receive a maximum of $511 per day, or a total of $5,110. Employees who take leave to care for a child are eligible for a maximum of $200 per day, or $2,000 in total.

To be sure, the interplay between the Families First Act and the Family and Medical Leave Act (FMLA) can be complicated, and employers or employees who have questions about the required amount of leave should reach out to a dedicated Austin employment lawyer for immediate assistance.

Contact a Travis County Employment Attorney

If you have concerns about your rights, either as an employee or as an employer, contact the Law Offices of Gregory D. Jordan. Attorney Jordan is a veteran Texas employment attorney with over 30 years of experience representing both employees and employers in a diverse range of employment matters. He commands an in-depth understanding of various state and federal employment laws, and is ready to put this advanced knowledge to use in your case. To learn more, and to schedule a consultation today, call 512-419-0684 today.

Texas Federal Court Addresses Pregnancy Discrimination Claim

Early February, a federal court issued a written opinion in a Texas employment discrimination lawsuit. The case involved an employee’s allegations that her employer illegally discriminated against her based on her pregnancy, as well as her pregnancy-related disabilities. The woman brought several claims. This case arose when the defendant employer filed a motion for summary judgment, asking the court to dismiss each of the employee’s claims. The court discussed two important issues in its opinion.

First, the court addressed the timeliness of the employee’s claim with the Texas Workforce Commission (TWC). Under Texas law and unless the deadline is deferred, employees who believe that they have been subjected to illegal employment discrimination must file a claim with the Texas Workforce Commission within 180 days. Under recent Supreme Court case law, this requirement is not a jurisdictional one, meaning that non-compliance will not bar a court from hearing a claim. However, the charge-filing requirement is still a mandatory pre-requisite, and can limit the amount of time that a court can consider an employer’s allegedly discriminatory conduct.

As a matter of general procedure, once filed, the Texas Workforce Commission will review the employee’s claim to ensure that it meets all the necessary criteria and, if it does, then provide a “charge of discrimination” form to the employee for her to sign. Once the charge of discrimination form is signed, the TWC will investigate the employee’s claim, sometimes in conjunction with the Equal Employment Opportunity Commission.

The TWC or EEOC can later issue a right to sue letter, and the employee can then file a claim in court. In some rare cases, the EEOC or TWC will sue on an employee’s behalf.

According to the court’s opinion, the employee first noticed that she was being discriminated against in April or May of 2017. The court did not discuss the exact details of the employer’s allegedly discriminatory actions; however, the employee filed a claim with the Texas Workforce Commission on March 20, 2018. Thus, the court noted that it was only able to consider conduct occurring in the 180 days before the complaint was filed. The court explained that there is a possible exception to the 180-day filing requirement when an employer is engaged in continuing violations. However, the employee, in this case, did not allege continuing violations. Thus, although the employee claimed that she was discriminated against starting in April or May of 2017, because she did not file a claim with the TWC until September, the court could only consider potentially discriminatory conduct that occurred on or after September 21, 2017 (180 days before the filing date of March 20, 2018).

Next, the court considered the employee’s claim that her employer interfered with her right to take leave under the Family and Medical Leave Act (FMLA). The FMLA provides employees of certain companies with the right to take leave under certain conditions, including childbirth or a serious health condition. Employers cannot interfere with this right or retaliate against an employee for taking leave under the FMLA. However, employers can terminate an employee for a valid reason, even if they have already arranged to take FMLA leave in the near future. Additionally, an employee who obtained her requested leave cannot file an FMLA interference claim, as she got what it is that she was seeking. However, arguably, any adverse employment action stemming from an employee’s decision to take leave could be considered retaliation if properly plead.

Here, the court noted that the employee asked for, and took, a portion of her FMLA leave. After returning from an initial leave, but before going back on leave in December of 2017, the employee was terminated. Resultingly, the court held that the employee was not able to bring an interference claim as to the portion of her leave that she was able to take. However, the court did allow for the employee to continue with her claim of interference for the unused portion of her leave.

The above discussion illustrates a few of the complex issues that can arise in a Texas employment discrimination case. It is important to keep in mind that, while the case discussed a few of the employee’s claims against her employer, several other claims were not mentioned in the opinion.

Contact a dedicated Austin employment discrimination attorney

At the Law Offices of Gregory D. Jordan, Attorney Jordan represents both employers and employees in all types of Texas employment lawsuits and arbitration matters. Attorney Jordan has over 30 years of relevant experience assisting businesses and employees in Travis County and throughout Central Texas. Contact the Law Offices of Gregory D. Jordan at https://www.theaustintriallawyer.com/.

Texas employees who are pregnant or recently returning from maternity leave are protected from employment discrimination

In 1964, the United States Congress passed the Civil Rights Act. The Civil Rights Act was a landmark piece of legislation that ended segregation of public places and banned discrimination based on the basis of race, color, religion, sex or national origin. The Civil Rights Act did much to combat the discrimination that was common throughout the United States at the time. However, as years passed, it became clear that the Act was not as comprehensive as lawmakers may have hoped or believed.

In the wake of the Civil Rights Act, women were still being made the victim of discrimination. This is at least partly because the Civil Rights Act protected female employees only on the basis that they were women. Thus, soon after the passage of the Civil Rights Act, courts held that an employer could legally base an employment decision on whether an employee was pregnant.

The seminal Supreme Court decision came down in 1974, and involved the availability of medical benefits. In that case, a public employer refused to cover the costs of health benefits for pregnant women. The court held that an employer who uses an employee’s pregnancy status as a basis for an employment decision is not making a decision based on a woman’s sex, and is not prohibited.

In 1978, however, the United States Congress passed the Pregnancy Discrimination Act, which amended the Civil Rights Act of 1964. Quite simply, the Act prohibited employers from discriminating based on pregnancy. The Act clarified language in the Civil Rights Act, noting that the terms “because of sex” or “on the basis of sex” include, “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The Act goes on to mandate that women who are affected by a pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes.

According to a recent article by the New York Times, despite the passage of the Pregnancy Discrimination Act, women are still experiencing discrimination in the workplace. Indeed, studies have shown that a woman’s pay is reduced, on average, four percent for each child they have, whereas a man’s pay increases by six percent when he becomes a father.

The article notes that the number of pregnancy discrimination claims filed with the Equal Employment Opportunity Commission has been steadily increasing for 20 years, and is near an all-time high. Claims of pregnancy discrimination are not limited to the private sector, as many of the claims were brought by women working for the state, local and federal governments.

The article notes that, as soon as a woman starts to show physical signs of pregnancy, employers begin to view a woman differently. The piece details the career of a particularly successful trader who was praised as being at the top of her field until she announced that she was pregnant. Shortly after sharing the news with her boss, she was told that her decision to get pregnant would “plateau” her career. Despite arranging her schedule to ensure that family would not interfere with her work obligations, the employee has been passed over for every promotion and received only cost-of-living salary increases when many of her colleagues were given more significant increases.

Unfortunately, this woman’s case is not unique. Some less than honorable employers routinely engage in sex discrimination. And the problems do not stop once the baby arrives. New mothers also frequently experience discrimination when returning to the workplace, either on the basis of having been recently pregnant or based on their new status as a mother. Mothers returning from maternity leave often face assumptions that their work is no longer their top priority. However, when employers act on this assumption without any evidence to support a decreased commitment to the job, they may be engaging in discrimination based on familial status.

As is often the case with most types of discrimination, pregnancy discrimination is commonly based on outdated beliefs and stereotypes. However, some truly well-intentioned employers can still go awry based on a lack of understanding of the applicable laws. Employers should be sure to have a firm understanding of the Family Medical Leave Act, short- and long-term disability, and the requirements of the Pregnancy Discrimination Act to ensure that they do not inadvertently discriminate on the basis of an employee’s sex. Employees who believe that they may have been the victim of pregnancy discrimination should consult with a dedicated Austin employment law attorney for assistance.

Contact a dedicated Austin employment discrimination attorney

At the Law Offices of Gregory D. Jordan, Attorney Jordan represents both employers and employees in all types of Texas employment lawsuits and arbitration matters. Attorney Jordan has over 25 years of relevant experience assisting businesses and employees in Travis County and throughout Central Texas. Contact the Law Offices of Gregory D. Jordan at https://www.theaustintriallawyer.com/.

Texas appellate court rejects employee’s claim of age discrimination, affirming arbitrator’s award in favor of employer

On July 30, 2019, the Texas Court of Appeals for the Eighth District issued a written opinion in a Texas employment discrimination lawsuit discussing whether an arbitrator correctly determined that the employee’s claim was not filed on time. The case is important for Texas employees and employers because it illustrates the need to act in a timely manner, and the deference that courts give to arbitrators’ decisions.

According to the court’s opinion, the plaintiff was hired as a trainer for Xerox in 2009. In 2016, the plaintiff was laid off. The plaintiff filed an age discrimination claim against Xerox, claiming that younger trainers with less seniority were not laid off. He also claimed that, during his tenure with the company, younger workers were given pay raises, while he was not.

The plaintiff initially filed a claim with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission. On November 3, 2016, the EEOC provided the plaintiff with a right to sue letter, and the next day, the plaintiff filed a lawsuit. Xerox responded by seeking to compel arbitration of the claim under the company’s “Dispute Resolution Procedure,” (DRP) which required all claims that were not informally resolved to be handled through arbitration.

First, the parties argued over whether the plaintiff was required to arbitrate his claim. However, on May 5, 2017, the plaintiff withdrew his case and submitted his claim to an arbitrator of his choice. Xerox, however, objected to the plaintiff’s choice of arbitrator, arguing that the DRP specified the arbitrators that must hear claims against the company. Finally, on August 16, 2017, the plaintiff submitted his case to one of the arbitrators in the DRP.

The DRP provided that a plaintiff who files a claim for arbitration must bring a claim “within the time allowed by applicable law.” If a plaintiff files a case in court rather than proceeding directly to arbitration, the plaintiff must file within “ninety days after the date a party is ordered by the court to arbitration … or ninety days after the date the parties agree to submit the dispute to arbitration under the DRP.” Additionally, under the Texas Labor Code, the plaintiff had to file his claim within 60 days of receiving the right to sue letter from the EEOC.

Xerox claimed that the plaintiff filed his claim too late. The plaintiff argued that he filed his initial complaint with his chosen arbitrator within 60 days of receiving the right to sue letter. However, Xerox argued that by withdrawing his case, the plaintiff “wiped the slate clean” because there was no longer an active case to base the 60-day time period. Additionally, there was never a court order or agreement to arbitrate the claim, making the 90-day time limits mentioned above inapplicable. Thus, Xerox argued that the plaintiff was required to file his claim within 60 days of November 3, 2016, the day he received the right to sue letter. Xerox argued that the plaintiff’s initial claim with his selected arbitrator did not constitute “filing” under the DRP because it was not with the correct arbitrator.

The arbitrator found in favor of Xerox, holding that the plaintiff failed to bring a case against Xerox in the appropriate amount of time. The plaintiff filed a motion in district court to set aside the arbitrator’s award based on the alleged bias and misconduct of the arbitrator. The trial court agreed with the plaintiff and reversed the arbitrator’s decision. However, an appellate court reversed the trial court’s decision, finding that there was no actual conflict of interest, and the arbitrator did not limit the plaintiff’s ability to present evidence. Thus, the court ordered that the arbitrator’s decision in favor of Xerox be reinstated.

Jury awards no damages in sex discrimination trial against Baker Tank

A Federal jury awarded no damages to a plaintiff who sued her employer for sexual discrimination and harassment. The trial was held in Marshall, Texas’ Federal Courthouse and was presided over by U.S. Chief District Judge Rodney Gilstrap. The trial lasted three days.

The case began when the plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging her employer, Smith County Baker Tank, ignored her complaints of sexual harassment, discrimination and a hostile work environment. The lawsuit alleged violations of Title VII, the Lilly Ledbetter Fair Pay Act, the Equal Pay Act and the Texas Employment Discrimination Act. The lawsuit claimed that throughout the plaintiff’s employment at Baker Tank’s Arp facility, she earned less than her male co-workers with similar jobs and was also subjected to sexual harassment and a hostile work environment. She alleged that male co-workers and supervisors would make sexist and inappropriate comments and engage in inappropriate behavior in her presence.

The plaintiff was seeking punitive damages between $48,000 and $480,000 as well as $15,000 in compensatory damages for lost pay. Further, the plaintiff sought damages for physical and emotional pain due to the discrimination and hostile working environment in the amount of $50,000 to $150,000, which represented her yearly salary for the three years she worked at Baker Tank.

The jury denied the plaintiff’s pay gap claim and found that she did not prove that she was paid less than her male counterparts because she was female. The jury also found that although she did prove that more than one co-employee harassed her because of her sex, this harassment did not rise to the level of creating a hostile work environment that would alter the terms of her employment. Therefore, the jury awarded no damages to the plaintiff.

Attorney Gregory D. Jordan is an employment attorney who represents employers and employees with offices in the Austin area. To learn more, visit https://www.theaustintriallawyer.com/

Retaliation claim over firing that took place soon after workplace injury should have gone to jury

The close proximity in time between a construction worker’s termination and his filing of a workers’ compensation claim, along with other factors that called the employer’s justification into question, should have been enough to get the employee past the employer’s motion for a judgment in their favor, the U.S. Court of Appeals for the Fifth Circuit held recently in a retaliatory termination case.

Reversing the trial court in a case in which the worker was fired just 15 days after he injured himself in a fall from a scaffold, and 11 days after he filed a workers’ compensation claim, the court said that the worker had presented enough evidence to get his case to the jury. The court, in an opinion written by Judge Catharina Haynes, called the judge’s decision to direct a verdict in favor of the employer “unexplained and difficult to discern.”

The Texas Supreme Court, in Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996), set out a list of factors for trial courts to consider when deciding whether unlawful retaliation played a role in a termination following a workers’ compensation claim:

  • Did the manager making the decision on the termination have knowledge of the compensation claim?
  • Did the manager express a negative attitude toward the employee’s injured condition?
  • Did the manager fail to adhere to established company policies?
  • Is there evidence of discriminatory treatment in comparison to similarly situated employees?
  • Is there evidence that the stated reason for the discharge was false?

Here, the Fifth Circuit, without passing on the merits of the employee’s retaliation claim, found more than enough evidence to withstand the employer’s motion for judgment as a matter of law.

First, the firing took place two weeks after the injury, and the manager was aware of both the injury and the subsequent filing of a worker’s compensation claim.

Second, the manager failed to follow the company’s progressive discipline policy — he jumped from Step One (verbal warning) to Step Five (termination), skipping the intermediate steps.

Third, the manager expressed a negative attitude toward the employee, describing his injury as a “supposed injury” and his physical restrictions as “self-imposed.”

Fourth, the manager — who in fact was the employer’s safety officer and not the employee’s direct supervisor at the time of the accident — offered several, shifting explanations for why the employee was fired. The employee was initially verbally warned for failing to pick up paperwork, then later fired after the manager accused him of being profane and insubordinate on a single occasion. However, the company’s documentation of the firing mentioned only “Violation of Safety Rules” and “Violation of Company Policy/Practices.” It described the employee’s injury as an occasion in which the employee “took it upon himself to utilize a scaffold of which he was not trained or authorized to use.”

The court decided that the circumstances surrounding the employee’s termination were circumstantial evidence of retaliatory motive.

“[The employee] has presented evidence to support the notion that the stated reason for discharge was false,” the court ruled, sending the retaliation claim back to the lower court for retrial.

The case is Cristain v. Hunter Buildings and Manufacturing LP, No. 17-20667 (5th Cir., decided Nov. 14, 2018).

EEOC to United Airlines: Conduct outside the workplace can create harassment in the workplace

A case involving “revenge porn” photos of a flight attendant published online by a pilot for the same airline promises to illuminate an employer’s duty to take affirmative measures to protect employees against sexual harassment in the workplace.

According to a recent complaint filed by the Equal Employment Opportunity Commission against United Airlines, the airline’s duty to keep its workplace free from sexual harassment includes a duty to crack down on harassment occurring outside the workplace as well — at least when bad acts are brought to its attention, multiple times, over a period of several years.

The EEOC’s complaint alleges that United Airlines knew about the pilot’s “revenge porn” posts targeting the flight attendant but unlawfully did nothing about them.

“Employers have an obligation to take steps to stop sexual harassment in the workplace when they learn it is occurring through cyber-bullying via the internet and social media,” said Philip Moss, an EEOC attorney. “When employers fail to take action, they fail their workers and enable the harassment to continue.”

The EEOC’s complaint was a long time in coming, according to the government. According to the EEOC, the flight attendant filed three civil lawsuits against the pilot. She obtained restraining orders against him in 2009 and 2011. Reporting by the San Antonio Express-News indicated that the pilot settled these cases for $110,000.

The flight attendant also purportedly complained to United Airlines officials in 2011. No corrective action took place as a result of these complaints. The pilot continued to work at the airline.

In 2013, the flight attendant filed another complaint with United Airlines. According to the flight attendant, the pilot was continuing to post photos of her online, sometimes while on the job during layovers between flights. United Airlines investigated but, according to the EEOC, took no action “that could be reasonably calculated to be effective.”

The flight attendant next complained to the FBI, which arrested the pilot in 2015. Federal charges notwithstanding, the pilot remained actively employed at United Airlines until January 2016 when the airline granted him a long-term disability. He pleaded guilty to a federal stalking offense in June 2016 and retired with full benefits one month later.

In its complaint, the EEOC alleged that United Airlines’ failure to address that the pilot’s actions interfered with the flight attendant’s ability to perform her job. The EEOC asserts that United Airlines’ inaction subjected the flight attendant to a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, including sexual harassment. The EEOC is seeking a permanent injunction preventing the airline from allowing hostile work environment for women. It also seeks money damages for the flight attendant.

United Airlines told the San Antonio Express-News that its conduct did not violate federal law. “United does not tolerate sexual harassment in the workplace and will vigorously defend against this case,” the airline said through a spokesman.

The case is EEOC v. United Airlines, Inc., No. 5:18-cv-817 (W.D. Texas, complaint filed Aug. 9, 2018).

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