FTC Apparently Reaches Its Threshold of Tolerance on Noncompete Restrictions and Introduces New Federal Law

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On January 5, 2023, the Federal Trade Commission (FTC) issued a proposed new rule which could fundamentally upend existing Texas law concerning noncompete clauses in employment agreements. The FTC stated that this action is necessary because noncompete clauses can stifle competition and lower worker wages. The big question is whether this proposed action will achieve the intended outcomes.

The implications of this new rule for executive compensation agreements could be profound. At a virtual forum hosted by the FTC on February 16, 2023, trade groups representing human resources professionals, retailers, health care businesses, asset managers, insurance brokers, and other types of business organizations argued that the FTC proposal is too broad. But the proposal is supported by unions and workers including doctors, nurses, veterinarians, home care workers, and teachers. The ban, they argue, would boost wages and increase competition, thus stimulating the economy. The comment period will remain open until March 20, 2023.

The Supreme Court’s Threshold for Nationwide Rules Proposed by Federal Agencies

Some speculate that, if this rule is adopted by the FTC as proposed, it is nearly certain to face a Supreme Court challenge. In a 2022 case involving the EPA, the Supreme Court handed down a decision that sharply limited the reach of a federal regulatory agency under what the Court termed “the Major Questions Doctrine.”

Separately, in February 2023, a bipartisan group of Senators re-introduced a bill called the Workforce Mobility Act of 2023. This legislation would largely ban the use of noncompete clauses in employment agreements nationwide as a matter of federal law. Does this initiative anticipate a Supreme Court move to strike down the proposed rule if it becomes final?

Contact Our Employment Lawyers for Your Noncompete Questions

To see an article about employment contracts click here Employment Contracts in Texas. To see another article about noncomplete enforceability in Texas click here Noncompete Enforceability in Texas. Prevent legal exposure. Click here to reach out to our employment lawyers contact Kilgore & Kilgore. Now is the time to review your existing noncompete and employment agreements to ensure they are aligned with prevailing law.

Current Texas Noncompete Law

Questions about the enforceability of noncompete clauses in employment agreements have typically been a matter of state law. In Texas, for example, these agreements must comply with the Covenant Not to Compete Act contained in Chapter 15 of the Texas Business and Commerce Code. This law provides that a noncompete agreement is enforceable if it is:

  • part of an otherwise enforceable agreement,
  • supported by adequate consideration,
  • no more restrictive than necessary to achieve legitimate business goal, and
  • sufficiently limited regarding geographic area, time, and scope of activity.

Noncompete agreements are also subject to the Texas Antitrust Act of 1983, which imposes similar requirements. Texas is far less restrictive of noncompete clauses than several states that have banned them completely and others that set income thresholds below which they may not be imposed. As proposed, any new federal rule will supersede all state laws that are inconsistent with its terms, essentially federalizing noncompete law.

Will the Proposed Rule Rescind All Active Noncompete Clauses?

If adopted, the proposed rule will require all employers that use agreements with a noncompete clause to rescind that clause. The ban would also extend to “de facto” noncompete clauses that have the effect of prohibiting workers from seeking or accepting employment or operating a business after their current employment. This may extend to restrictions affecting the disclosure of confidential information and customer non-solicitation restrictions. In the “de facto” category, limits may also include:

  • prohibiting a former employee from doing business with former clients or customers of the employer,
  • prohibiting a former employee from hiring or recruiting a former employer’s worker, and
  • requiring the former employee to pay the former employer a sum of money if s/he engages in certain conduct spelled out in the non-competition clause.

Any provision offered in exchange for the prohibited agreement, (such as severance pay) would, however, remain intact. Employers would be required to communicate individually with current and former employees subject to the banned clause. The proposed rule would not affect:

  • banks, savings and loans, and federal credit unions,
  • common carriers and air carriers, and
  • members of the livestock, meat, and poultry industries who are otherwise
    subject to the Packers and Stockyards Act of 1921.

The proposed rule also contains a sale-of-business exception for individuals with at least a 25 percent ownership stake in the business. It is not yet clear how the proposed rule would affect employee benefit plans or consulting agreements that contain claw back clauses requiring repayment of previously paid compensation in the event of a non-compete breach.

Our Employment Lawyers Can Help With Noncompete Clauses and Employment Agreements

The proposed rule is likely to be modified before either becomes final and, even then, will not take effect until 180 days after publication. It is always wise to position your company to be nimble and anticipate changes imposed by new laws. Human resource professionals, business owners and executives should review their employment agreements and consulting agreements. Our employment lawyers can help you assess your situation and craft the best options for you going forward. Click this link to learn more about our Executive Compensation law practice. Use this link to get the conversation started Contact Kilgore & Kilgore.

Defamation on FINRA Forms U-5 of Financial Advisors in the Securities Industry can be Expunged

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An industry standard known as the FINRA Form U-5 is the personnel report used in the securities business to explain the reason for termination of a FINRA-registered financial advisor or broker-dealer by an employer. The securities industry is regulated by FINRA, the Financial Regulatory Industry Authority, an independent, nongovernmental organization that writes and enforces the rules governing financial advisors, broker-dealers, and securities companies in the U.S.

Under FINRA rules, companies selling securities who employ brokers-dealers and financial advisors must file a FINRA Form U-5 within thirty days of the termination of a registered broker-dealer or financial advisor. If the termination was the result of anything other than the individual’s death or voluntary decision to leave, the reason for the termination by the employer must be explained to FINRA. Such a report is called a FINRA Form U-5. The information on the FINRA Form U-5 is publicly available. Future employers can easily obtain them to learn about potential new hires.

This is where the predicament takes on a more serious consequence for the financial advisor or broker-dealer. Beyond the fact of the termination, negative information about the fired employee’s performance on a FINRA Form U-5 can be career-ending. A negative performance review follows a financial advisor or broker-dealer, particularly in a personal service industry, and may hamper this employee’s ability to find new clients or a new job in the securities industry.

If the reason for a termination is reported by the employer in a false, retaliatory, or an inappropriate manner, it reflects negatively on the reputation of the financial advisor or broker-dealer because it goes to the issue of honesty. Many supervisors take a casual view of the information they report on a FINRA Form U-5, thinking it is a mere nuisance, part of the job, and do not realize the damaging effect of that report. Such a report may render the employee unemployable in the securities industry.

Kilgore’s FINRA Lawyers Can Help Protect the Career of a Financial Advisor or Broker-Dealer

If you have questions about a FINRA Form U-5, how to properly fill one out, or how to correct or expunge defamatory or irrelevant statements on a FINRA Form U-5, we are here to help. Click this link to learn more about our FINRA Law Practice. Click here FINRA Testimonials to read what some clients who we assisted in expunging derogatory FINRA claims said about us. If you wish to proceed with a legal conversion or action of your own, click here, fill out, and send in, this Contact Us form.

False and Defamatory Statements on FINRA Forms U-5 Regarding the Performance of Financial Advisors and Broker-Dealers Have Harmed Their Careers

Several years ago, at the height of the Wells Fargo Bank fake account scandal, that bank fired thousands of retail bank employees for allegedly creating fake applications and bank accounts. Approximately 200 of the fired employees, who were registered with FINRA, claimed that they were fired or pushed to resign after resisting pressure to sell unwanted products to customers and for reporting unethical practices.

Wells Fargo Bank, they claimed, retaliated against them with false and defamatory information on their FINRA Forms U-5. Left unchallenged, those statements could have ended their careers. The U.S. Senate held hearings, FINRA investigated, and the Consumer Financial Protection Bureau (CFPB) ultimately fined Wells Fargo Bank $185 million. Apart from the federal action, this story brings into sharp focus the role that state law plays in Form U-5 defamation lawsuits.

In Texas, defamation occurs when a party makes false statements of fact about a person, product, or business. To win a defamation lawsuit in Texas, an injured person must show that:

  • The defendant made a false statement about the person, business, etc.
  • The defendant communicated that statement to a third party.
  • The employer’s statement caused reputational or material harm.
  • The defendant acted either negligently or purposefully.

Private citizens need not show actual malice, only that the statements under review were negligent. In other words, a defendant like a broker-dealer must take “reasonable care” to find out if the statements made were the reasons for termination of employment were true or false. It is important to keep in mind, though, that defamation laws in each state have developed under slightly different precedents, so it is wise to work with someone specifically versed in Texas law when pursuing a Texas defamation case.

The Rumor Mill and the FINRA Form U-5

Consider the case of Mel Schonhurst. He was a managing director, financial advisor, and successful bond executive with RBC Capital Markets. Unsubstantiated allegations appear to have cost him his job and reputation. RBC terminated his employment after an industry publication, The Bond Buyer, named him in connection with a federal investigation at RBC.

His FINRA Form U-5 report noted that RBC was informed by an FBI agent that Mr. Schonhurst was the subject of an investigation. This report created the impression that the FBI had evidence linking him to a public corruption and bribery scandal in the bond market in El Paso. He was never charged, and the investigation was closed. Thereafter, he was unsuccessful in gaining new employment in the bond industry. More than seven years after his wrongful termination became a matter of public record, Mr. Schonhurst obtained a FINRA arbitration award that ordered RBC to amend its FINRA Form U-5 filing on him to correct the information by adding a statement indicating that no charges arose from his employment with RBC.

FINRA Arbitration Rules and Processes

As an independent industry organization, FINRA provides an arbitration forum and code of procedure for dispute resolution and brings disciplinary actions for violations of its rules. FINRA normally prefers arbitration over litigation. Consequently, most FINRA Form U-5 defamation claims are resolved through arbitration before a specialized, private forum of typically three individuals.

Potential claimants should be aware that the processes and procedures of arbitration are different from what most people know about litigation. It is a very specialized area. Among the disadvantages of this approach is that the decisions of the arbitrator panel generally do not create legal precedent. They may be kept secret. They do not apply to collective or class actions. They are difficult to appeal – which is even more incentive to get it right at the beginning.

On the other hand, the panel of arbitrators is fully familiar with FINRA rules and processes. The arbitration forum may also order expungement of disparaging information and correction of the record of a financial advisor or broker-dealer. This can revive a damaged career. The payment of compensatory damages to repair the financial harm wrecked by the defamation can help set this person up for future success. Still, these remedies cannot give back to the financial advisor or broker-dealer who was harmed the success s/he experienced before.

Reach out to our FINRA Lawyers for FINRA Form U-5 Defamation Assistance

If you believe that the information your previous employer submitted on your FINRA Form U-5 is false and defamatory under Texas law, call us to discuss your situation. We understand the economic impact of defamation can be devastating to careers in securities. We have helped many broker-dealers and financial advisors turn their lives around. Although every situation is different, expungement, correction of the record, and compensatory damages are possible. We offer a free evaluation of the facts of your case. Use this link Reach Out to Us to get the conversation started.

Justice for Car, Truck, Motorcycle, Bicycle, Pedestrian Accidents and Personal Injury Victims in Texas

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A personal injury lawyer can help people who have been harmed by the negligence of others in all kinds of situations – car, truck, motorcycle, bicycle accidents, etc. Such cases may include construction accidents, falls, wrongful death, work injury, just to name a few. Many people may not have thought about how to make the most of a personal, professional relationship with a lawyer. But it becomes necessary when hiring a lawyer.

As of the end of 2022, there will have been roughly 7,000 vehicle accidents in Texas, the most in the country. This is nothing to brag about. But even this staggering number barely captures the grief, physical harm, and financial toll of car, truck, motorcycle, bicycle, and pedestrian accidents.

If you or a loved one has been involved in a serious accident, your first concern should be your health, and we hope, your recovery. But the bills can pile up quickly, life may never go back to what it was before, and evidence can be lost. Reaching out to an experienced personal injury lawyer can help you concentrate on healing, as you should. When hiring a lawyer, it is important to do some homework so that you have information about the lawyer and law firm with which you will be working. It is often important to act quickly before crucial evidence is lost or the time limit on filing a lawsuit expires. Depending on the kind of injury you or a loved one has suffered, the time limit can be very short.

Call Our Texas Personal Injury Lawyers

If you have been injured in any kind of accident, reach out to us as soon as you can. An initial evaluation of your case to see if we can help will cost you nothing. Just click on this link to get the conversation started contact Kilgore & Kilgore. To learn more about out our personal injury practice, click this link Car and Truck Accidents. We focus on the big picture of helping you and your family find your way through a tough time.

Get Medical Care Right Away So You Have a Concurrent Medical Treatment Record

Even if you do not think you are hurt, go the hospital to get checked over. You might be saving yourself from further harm. Some injuries, like those sustained in a car, truck, motorcycle, and bicycle accidents, may not be immediately obvious. Furthermore, linking medical expenses to your accident may be difficult without concurrent medical records.

What to Do Right After an Accident

You have probably known most of these tips since your first driver’s education course. But these things are important, so that they bear repeating. Stay at the scene of the accident, but out of traffic. Call the police. Call 911 if anyone is injured. Collect the names and contact information of all the drivers affected. If you are able, take photos or videos of the accident scene, injuries, debris, skid marks, road signs. Stay away from social media.

When you are injured in an accident from which you hope for reimbursement of medical care bills or money, you should carefully assemble and organize as much evidence as possible. Get receipts for payments you made in connection with the accident. All types of information are important, including medical treatment records, witness contact information, insurance policies, and insurance coverage documents.

Get the Right Legal Help for Your Personal Injury

Avoid spinning your wheels and get on track early by interviewing and hiring a personal injury lawyer as soon as possible after the accident. Reputation and expertise matter. If you know someone who has been injured in a similar situation, ask for a recommendation. A solo practitioner or a newly minted lawyer might not have the depth of experience or resources of an attorney who practices with other lawyers in a law firm. As Abraham Lincoln allegedly said, “A man who represents himself has a fool for a client.” If, for example, you are suing the driver from a large interstate truck company, you should assume that they have a big, sophisticated law firm at the ready. You or your cousin Vinnie could find yourselves seriously outgunned.

Talk About the Money Upfront

Many law firms do not bill for an initial consultation. Some charge a fee, however, so be sure to ask. Personal injury lawyers commonly charge on a contingency basis. If you recover nothing, you will owe them nothing except possibly the cost of certain out-of-pocket expenses. If you do recover something, your lawyer will be entitled to a portion of it.

The Legal Process

If the lawyer you hired is unable to resolve your claim upfront, a lawsuit is the next step. A lawsuit begins with the filing of a complaint with the court. The complaint will set out your injuries, both physical and financial, how else you may have been harmed, and why you believe the other party is at fault.

Thereafter, both sides will begin to collect evidence to support their side of the argument. This stage is known as “discovery” and may involve conducting depositions (interviews conducted under oath), gathering evidence including medical care records, reports of expert accident investigators, financial records, and so on.

When discovery is complete, settlement negotiations may begin in earnest. Such negotiations often involve insurance companies. Keep in mind that settlement involves compromise, and the sign of a good compromise is that neither party is completely happy. Many personal injury lawsuits end with a settlement.

For those that do not, the next step is a trial. After the trial, either party may file an appeal and, depending on what issues are involved, the court’s decision on appeal may also be appealed.

Contact Us Regarding Your Accident and the Final Resolution

Reach out to Kilgore Law for a free review of the facts of your case. Click here to get the conversation about your situation started contact Kilgore & Kilgore.

New Federal Law Helps Victims of Unjust Termination, Workplace Harassment, and Sexual Assault

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Previously, many workers who have suffered from unjust termination, sexual harassment, and sexual assault were limited in court with their employee lawsuits by pre-dispute non-disclosure and non-disparagement contract clauses in employment contracts. A new federal law called the Speak Out Act has been passed by Congress and was recently signed into law by President Biden. This law prohibits the use of non-disclosure and non-disparagement agreements (collectively NDAs) to silence employees who have suffered from sexual harassment or violence in the workplace. This new law adds to the protections already afforded employees under federal and Texas law, but it has limits, which workers should understand.

The Speak Out Act Prevents Courts from Enforcing NDAs in Employee Lawsuits

This new law focuses on disputes where a worker alleges assault or sexual harassment. The law also applies to non-disparagement clauses in sexual assault or harassment cases, which includes any agreement that requires a worker to refrain from negative statements about the employer. Importantly, however, this new law stops only the enforcement of those NDAs signed before a dispute arises – not afterwards. If, for example, an employee was pressured into a secrecy agreement after a sexual assault, the Speak Out Act would not apply.

Many employee lawsuits that allege sexual harassment or assault settle before trial, which is understandable from the point of view of either an employer or an employee who wants to avoid negative publicity. But an employee’s agreement to remain silent about the alleged mistreatment is often part of the deal that is ultimately negotiated. The Speak Out Act permits confidentiality agreements that prevent one or both parties from revealing information about the claim or the settlement.

There are pros and cons to this exception. Settlement generally benefits both parties. But secrecy may leave other employees vulnerable. To be frank, employees need to know what the dangers are to protect themselves.

The law does not affect NDAs that are intended to protect trade secrets and proprietary information. Texas law is generally protective of an employer’s right to protect this information. The Speak Out Act does not apply to proprietary information.

It is also not entirely clear whether the law applies to former employees, prospective employees, and outside contractors. It also speaks of disputes without defining the term. Critics have suggested that this new federal law simply codifies existing legal rules that protect a victim’s right to report a violation of criminal law.

Other Employment Lawsuits Ignored by the Speak Out Act

Others suggest that the new law creates a specially privileged set of rights that leaves out victims of other kinds of discrimination, harassment, and assault. Consider the plight of those whose work lives are made miserable because of racial, national origin, or disability harassment. “Why not me?” is a legitimate question in the face of these kinds of harassment.

It is also true that sexual harassment may be only a part of a pattern of behavior that includes other forms of discrimination, retaliation, and breach of contract. The precise contours of the new law have yet to be fully defined. In fact, though, those contours may matter less than immediately meets the eye because of other employment discrimination protections that already exist.

The Full Picture of Worker Rights Produces Safety and Security

The collection of expanded legal protections for employees may seem piecemeal. When they are taken as a whole, however, they add to the safety and security of Texas workers and the remedies they may have available. The Speak Out Act is only the most recent addition to a collection of existing laws that protect worker rights. Both Title VII of the federal Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code protect Texas employees from employment discrimination based on sex or sexual harassment.

In March 2022, Congress enacted a law which prevents employers from enforcing pre-dispute arbitration agreements without the employee’s consent in cases involving sexual harassment and sexual assault. For a variety of reasons, arbitration often does not produce satisfactory results for employees. Since then, employers have not been permitted to require employees to arbitrate claims of sexual harassment or sexual assault. Employment lawsuits that are not strictly sexually based may still have to be arbitrated.

Effective September 2021, Texas employees who work for businesses with fewer than 15 employees have remedies for sexual harassment under Section 21.141 of the Texas Labor Code. Prior to that date, Texas employees who worked for very small companies had more limited protections.

Employment Lawsuit Definitions Redefined in Texas

In 2021, the Texas legislature also expanded the definition of employer. In this context, the term also includes a person who acts directly in the interests of an employer in relation to an employee. The law may cover harassment if it is done by an outside contractor or a fellow employee. Now supervisors, managers, HR professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and be held personally liable for damages if they failed to respond to complaints or to deter illegal behavior in the workplace.

Our Employment Lawyers Will Help You With Workplace Sexual Harassment or Assault Problem

Our employment lawyers understand how difficult it is to deal with job-related harassment, discrimination, violence, or any number of other unfair and illegal situations at work. Contact us when workplace difficulties arise to learn if you have a legal case. Click here to get the conversation started contact Kilgore & Kilgore. Or call us at (214) 949-9099. We are here for you.

Here is More Information on Sexual Harassment and the Law

To learn more about recent changes in sexual harassment cases, click here Forced Arbitration. To read about sexual harassment cases in Texas, click here Texas law. For a general overview of Kilgore Law’s employment practice click this link Protect Your Dignity or Employment Law.

Kilgore & Kilgore Employment Lawyers Score a Win for Two Texas Whistleblower Employees

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On August 29, 2022, the Fifth Circuit Court of Appeals affirmed a jury verdict for two former Denton Municipal Electric (DME) employees. Michael Grim and Jim Maynard sued the DME after they were placed on administrative leave for reporting that council member Keely Briggs leaked of confidential information regarding the proposed Denton Energy Center to the Denton Record-Chronicle. The newspaper then published the information online. The day after they filed their lawsuit, they were fired.

Grim and Maynard, through their Kilgore & Kilgore attorneys, Robert Goodman and Eric Roberson, argued that their firing was unlawful under the Texas Whistleblower Act (TWA). The TWA protects public employees from retaliation when they make good faith reports of violations of law by their employer to an appropriate law enforcement authority.

Do You Suspect Your Own Employer of Retaliation or Other Unlawful Action?

Perhaps your employer is engaged in illegal activity. This is a sensitive and uncomfortable situation. To be frank, it can cost you your job if you report it. On the other hand, if you have played an unwitting part in their activities, you may be legally exposed. Do not wait until something happens. Several different laws protect whistleblowers and employees who experienced retaliation, such as wrongful termination. Contact Kilgore Law for a confidential discussion. Click this link to get the conversation started Contact Kilgore Law. For more information about our whistleblower law practice, click this link. To learn about Kilgore Law’s employment retaliation law practice, click this Employment Retaliation.

Whatever you decide to do, reach out to a lawyer before you file a complaint.

This Case Involved Complicated Facts

The facts in this case, Grim v. DME, are complicated. This is the situation in almost all whistleblower and retaliation cases. Michael Grim was the executive manager for power legislation and regulatory affairs at DME. Jim Maynard worked as an energy project development manager for DME. They became concerned when Denton City Council Member Keely Briggs leaked confidential information about a controversial $265 million gas-fired power plant contract, which was approved by the Denton City Council in September 2016. It was leaked to the local newspaper, which published the details.

City of Denton Irregularities Multiplied

Allegations were already in the air about possible irregularities in DTE’s contracting process. Grim and Maynard reported the leak to then-city attorney Anita Burgess, who took no action against Briggs, the council member who leaked the information. Subsequently, the opponents of the power plant contract obtained political control of the city council. Grim and Maynard were called into a series of closed meetings with their employer, DME. They characterized the meetings as interrogations. Both had asked that the meetings be open in accordance with the Texas Open Meetings Act, to no avail. Thereafter, both were terminated. DME cited their inaccurate and misleading responses during their interviews on the matter as the reason for their termination.

Grim and Maynard filed their lawsuit in July 2017, claiming they were put on administrative leave in retaliation for reporting a media leak of confidential contract information. This action, they claimed, violated the Texas Whistleblower Act. On July 11, 2017, the day after they filed their lawsuit, both were fired.

At trial, the jury found in favor of Michael Grim and Jim Maynard on their claims under the Texas Whistleblower Act (TWA). The award of damages was thereafter reduced, however, the amount of the judgment with interest is approximately $3 million. The jury’s finding that their employer’s actions violated the TWA was affirmed on appeal.

Texas Whistleblower Act (TWA)

Public employees who make good faith reports of violations of law by their employers to law enforcement are protected by the TWA. Whistleblowers provide an important safeguard because they are often the eyes and ears on the ground and the first to know about corporate and government wrongdoing. Although there are also federal laws that apply more broadly, the TWA applies specifically to people employed by Texas local or state government entities. This includes employees of state education institutions, commissions, boards, law enforcement, bus drivers, and others.

Employment Retaliation Claims Face Tricky Legal Questions

To bring a successful retaliation claim under the TWA, a Texas claimant must:

  • be a public employee; and
  • act in good faith when making the report.

In addition, the employee must show that:

  • the report was made to an appropriate law enforcement authority.
  • the reported action was unlawful; and
  • the employer must have taken what is legally defined as an adverse action against the employee in response to the report.

Texas Whistleblower Lawsuits Require Competent Legal Expertise in Order to Win in Court

Whistleblowers who believe they have a case should arm themselves with expert legal advice. Whistleblower lawsuits can turn on subtle legal questions like what is good faith? What is an appropriate law enforcement authority? What is an adverse action? Some critics have suggested that the law provides disproportionate protections to employers. Whistleblowers who believe they have a case need to be ready and arm themselves with expert advice.

Our Employment Lawyers Can Guide You Through Your Whistleblower and Retaliation Claims

Contact us with your whistleblower and employment retaliation questions. Competent legal representation is necessary in these complicated situations. We may be able to help you, just as we assisted Michael Grim and Jim Maynard. Reach out to us. To get the conversation started, click here Contact Kilgore Law.

The Story of Employment Discrimination in Texas by the Numbers

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According to statistics compiled by the federal Equal Employment Opportunity Commission (EEOC), there is a widespread occurrence of employment discrimination in Texas. In fact, Texas consistently accounts for ten percent of the total workplace discrimination charges filed in the U.S. The total number of all discrimination complaints filed with the EEOC fluctuates from year to year. But it has not declined appreciably since 2009.

The conclusion that employer discrimination is a persistent problem in Texas cannot be denied. How this compares with other states is interesting. Those states with high employment discrimination complaints, according to the federal EEOC are, in descending order from Texas, include Florida, California, Illinois, and North Carolina.

Workplace discrimination is a deeply personal experience with profound consequences for workers and their families. Therefore, workers need to know how federal and Texas state laws protect them from illegal discrimination and what they can do to protect themselves when they believe their legal rights are violated.

Kilgore & Kilgore Texas Employment Lawyers Hold Employers Accountable

Legal rights? Let’s discuss them. Have you experienced discrimination, harassment, assault, unjust termination, retaliation, color, or endured a hostile work environment because of race, sex, pregnancy, disability, age, or national origin discrimination? Reach out to our employment lawyers who can help you decide if what you saw or experienced is illegal and what you can do about it. To get the conversation started, fill out and submit the form you see when you click on this link Contact Kilgore & Kilgore. You can also call us at (214) 949-9099. To learn more about discrimination situations in the workplace, click this link Employment Discrimination legal practice. Also, see our many discrimination articles on our website. Just click here to read more Discrimination Blogs.

Statistics Reveal that Employment Discrimination is Rampant in Texas

The federal EEOC numbers show three unsettling trends. The first trend relates to the types of workplace discrimination issues most frequently identified by Texas workers. Of all the Texas employment charges filed, more than half (57.9 percent) were for retaliation. The other most prevalent issues include:

  • racial discrimination (31.8 percent)
  • sex discrimination (30.6 percent) and
  • disability discrimination (36.6 percent).

The above percentages total more than 100 percent because employees frequently file charges in more than one category.

Types of Employment Discrimination Complaints in Texas

The second point of comparison relates to how the total numbers stack up against national averages. Compared to national numbers, Texas employers account for:

  • 10.0 percent of retaliation charges
  • 9.4 percent of race discrimination charges (but 12.1 percent of discrimination filings based on color and 13 percent of national origin discrimination filings)
  • 9.3 percent of sex discrimination charges
  • 9.8 percent of disability discrimination charges
  • 10.3 percent of age discrimination charges

Illegal Employment Discrimination Situation in Texas Does Not Seem to be Improving

The third and most meaningful point of comparison in the federal EEOC statistics relates to the question of whether illegal discrimination against Texas workers seems to be getting better or worse. Except for a small statistical blip in fiscal years 2015 and 2016, the numbers are remarkably stable.

Employees Must Actively Enforce Their Employment Rights

Under federal and Texas law, be assured that you have the right to be paid for the work that you do, regardless of:

  • race, color, and national origin
  • age over 40
  • gender
  • pregnancy or family status
  • disability

At your Texas workplace, you have the right to be free of:

  • physical, verbal, and other forms of harassment based on illegal classification
  • illegal harassment of others, including co-workers and contractors
  • unreasonable safety hazards
  • illegal termination of employment
  • a change in work conditions so severe that it amounts to a termination
  • all forms of retaliation for making a complaint regarding any of the above rights.

These rights are protected under:

  • Title VII (Title VII of the Civil Rights Act)
  • ADEA (Age Discrimination in Employment Act)
  • ADA (Americans with Disabilities Act)
  • OSHA (Occupational Safety and Health Act)
  • FLSA (Fair Labor Standards Act)
  • Federal minimum wage laws and Texas civil and criminal statutes, among other laws.

Employment Discrimination is Pervasive in the U.S.

In a new study last updated in 2020, three in five U.S. employees have witnessed or experienced discrimination. In 2019, 61 percent of U.S. employees had reportedly either witnessed or personally experienced discrimination based on age, race, gender, or sexual orientation. Forty-two percent of employed adults in the U.S. had experienced or witnessed racism in the workplace. Forty-nine percent of American workers witnessed or experienced age discrimination. It is important to remember, though, that these statistics are based only on reported cases.

And this may be only the tip of the proverbial iceberg. Everyone has heard stories of workers choosing not to complain. There are many reasons for keeping quiet. Employees do not wish to make an issue in fear for their jobs, for example. This means that the mistreatment goes on and may affect others in the same workplace or beyond.

The first thing to understand is that you are not alone. The second thing to know is that you can get the legal help you need, or at the very least, have your situation evaluated by an employment lawyer.

Getting Legal Help Creates a Powerful Weapon Against Employment Discrimination

So many experiences of discrimination go unreported, creating a haven for employers, co-workers, contractors, and others in the workplace who discriminate against people and get away with it. How can this be stopped? What can we do to make this go away? Legal help is a powerful weapon available to all of us in the U.S.

When You Experience Employment Discrimination, Take These Steps Instead

An employment attorney can help you get the ball rolling toward a legal action that may lead to a lawsuit. An attorney can help you file a thorough, accurate, and convincing claim. Someone who is represented by legal counsel has a better chance of succeeding than those who file claims on their own.

Waiting Reduces or Eliminates Your Chance of Success

The statutes of limitations on employment discrimination lawsuits vary by statute, but they are often quite short. You can easily lose your right to file an EEOC claim by waiting too long. Once you are out of time, your claim is gone.

Our Texas Employment Lawyers Have Answers to Your Employment Problems and Questions

Our employment lawyers have years of experience with employment claims under Texas and federal laws. Contact us if you believe that you have been the victim of discrimination, harassment, retaliation, illegal termination, or other workplace problems. Reach out to Kilgore & Kilgore for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out and submit this form.

Expansion of Disability Benefits for Veterans under PACT Act and Recent Torres Supreme Court Decision

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The legal landscape has improved for the men and women who served in the military but then found it was hard or impossible to access promised rights to re-employment and health care benefits when they returned from duty. In June 2022, the U.S. Supreme Court held that a veteran who was disallowed re-employment was wrongfully denied medical benefits. This decision resulted in two important developments for our veterans because each supplements rights to benefits already available to veterans under USERRA (the Uniformed Services Employment and Re-employment Rights Act of 1994), other federal laws like the ADA (Americans with Disabilities Act), and Texas state law. All are closely tied together:

  • the first, which expands re-employment rights, and
  • the second, which expands medical benefits.

Some Kilgore Lawyers Are Also Veterans. We Know How to Help.

Are you having problems with employment or re-employment discrimination? To learn about our legal practice for Vets, click here Servicemember Rights. Click here to learn more about discrimination Employment Discrimination. To read an article on USERRA, click here USERRA. To get the conversation started about your legal rights, click this link Contact Kilgore Law.

Torres v. Texas DPS (Texas Department of Public Safety) and Disability Benefits

The President has signed into law the PACT Act, known as the Sergeant First Class (SFC) Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act. The PACT Act expands medical benefits through the VA for Veterans exposed to burn pits and toxic substances. Captain Torres suffered wounds described as invisible injuries, likely the result of exposure to toxic burn pits. He enlisted in the Army Reserve in 1989. In 2007, he was called to active duty and deployed to Iraq. While serving, he was exposed to toxic burn pits, a method of garbage disposal that sets fire to all manner of trash, human waste, and military equipment. He received an honorable discharge but came home with constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. These ailments, Torres claimed, changed his life, and left him unable to work at his former job as a Texas State Trooper. He asked his former employer, the Texas DPS, to accommodate his condition by re-employing him in a different role. Texas refused to do so.

State of Texas Tried to Dismiss the Disabilities Lawsuit, Claiming Sovereign Immunity

Torres sued Texas in state court. He argued that Texas violated USERRA’s mandate that state employers rehire returning veterans, use reasonable efforts to accommodate any service-related disability, or find an equivalent position where the disability prevents the veteran from holding a prior position. Texas moved to dismiss the lawsuit, claiming sovereign immunity. Sovereign immunity is a doctrine that asserts that Congress (in this case, by means of USERRA) cannot authorize private lawsuits against a nonconsenting state. If Torres had sued a private employer, sovereign immunity would not have been relevant. The trial court decided for Torres, but the appellate court reversed that decision. However, the US Supreme Court held that by ratifying the Constitution, the states agreed that their sovereignty would yield to the exercise of a particular federal power, in this case, the national power to raise and support the armed forces.

What is Federalism?

The concept of federalism works to balance the power of states against the power of the national government, giving both some authority. It is meant to divide government power, so that a national government cannot have the final say over all issues, everywhere. The US Supreme Court’s decision in the Torres matter goes deep into the weeds of federalism. The US Supreme Court held that the national power to raise and support the armed forces outweighed any state’s interest in the doctrine of sovereign immunity. Congress, therefore, has the power through federal laws like USERRA, to authorize private damages suits against non-consenting states. The bottom line in this case is that veterans who seek to enforce USERRA rights against previous employers, who happen to be states, do have the right to bring lawsuits.

USERRA and Disability Benefits

If a veteran has a disability incurred in or aggravated by his or her service, an employer must make reasonable efforts to accommodate the disability and return the veteran to the position in which he or she would have been employed but for the military service. If the veteran is not qualified for that position due to disability, USERRA also requires the employer to make reasonable efforts to help qualify the veteran for a job of equivalent seniority, status, duties and pay, which he or she is qualified to perform or could become qualified to perform. This could include providing training or retraining for the position at no cost to the veteran. These were the benefits Torres sought.

Definition of a Disability Incurred in the Course of Military Service or Aggravated Because of It

The lifelong injuries caused by bullets and bombs are typically easy to recognize. Not so, however, with equally devastating invisible injuries such as PTSD or exposure to carcinogens. The effects of these injuries may not appear for many years. That may be where The Pact Act can be effective for those exposed to toxic burn pits, Agent Orange, and radiation.

The PACT Act Briefly Explained

Briefly, the PACT Act expands and adds benefits for veterans including:

  • Expands and extends eligibility for VA medical benefits for veterans with toxic exposures
    and veterans of the Vietnam War, the Gulf War, and post-9/11 eras;
  • Adds more than 20 new presumptive conditions for burn pit and other toxic exposures;
  • Adds more presumptive-exposure locations for Agent Orange and radiation;
  • Requires the VA to provide a toxic exposure screening to every veteran enrolled in
    VA health care; and
  • Helps improve research, staff education, and toxic exposure treatments.

Focus on the word presumptive. In law, a presumption is a powerful and slippery issue. It eases the burden of proof considerably when an injured veteran tries to show that a particular event or exposure that occurred in the course of military service caused a disability years later. It can also be limited and trimmed to the point of near non-existence in a court of law.

Interpretation of USERRA as it Relates to the PACT Act Will be Explored Through Future Litigation

The Torres decision came down weeks before the PACT Act became law. In the Torres case, the Supreme Court did not decide that Texas was liable. It simply remanded the case back to the lower court for a decision that does not depend on sovereign immunity. Not all federal disability statutes use the same presumptions. The Torres decision seems to imply that exposure to toxic burn pits might qualify as the cause of a disability incurred or aggravated in the course of military service.

The Texas Military

The Texas Government Code says that members of the Texas National Guard and other state military forces who are called to active state duty by the governor are entitled to the same benefits and protections as USERRA provides to national servicemembers. Applying the PACT Act via USERRA to those who have served in the Texas National Guard and other state military forces seems like a stretch at this writing. There are few if any toxic burn pits and Agent Orange situations in Texas. Were the presumptions of the PACT Act applied to exposure to carcinogens in general, the result might be different. This remains in the realm of future court decisions.

Reach out to Kilgore’s Veteran Lawyers for Legal Help with Obtaining Military Benefits

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Texas Supreme Court Hands a Big Win to Sales Employees with Employment Agreements and Commission Contracts

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A recent Texas Supreme Court decision made it harder for an employer to dodge an obligation to pay a commission by firing the employee responsible for that sale at the last minute. The Court clarified that commission contracts should be interpreted according to the century old procuring cause rule, unless the parties had explicitly agreed to other terms. If the employee produced the sale and the employment agreement was to pay a commission, then the employer may not claw back the commission by firing that employee.

The procuring cause rule says that an at-will employee who receives commissions as part of a compensation package must continue to receive commissions on sales consummated after the employee’s termination if the fired employee caused the sale. Contracting parties may agree to other terms, but these must be explicitly set out in the compensation contract or employment agreement.

Top employees are often offered complicated compensation packages. These may include salary, commissions, performance bonuses, stock awards, other forms of incentive compensation, and severance benefits. The salary provisions are straightforward. The other elements are more troublesome. The legal requirement that commissions terms be set forth explicitly in an employment agreement allows them to be negotiated. Performance bonuses, incentive compensation, whatever the terminology, are pieces of a puzzle. Hiding the ball is a poor strategy that can hurt both parties. Most agree that careful, honest, and thorough negotiation is better for all parties to an employment agreement.

Employment Agreement or Commission Contract Questions? Our Texas Employment Lawyers Can Help

If you have questions about an employment agreement or a commission contract, click on this link to get the conversation started Contact Kilgore & Kilgore. Sometimes even the best laid plans go awry, though, and we are here to help you through employment agreement negotiations. We offer a free review of the facts of your situation. To learn more about commission contracts and employment agreements, click this link Executive Compensation.

The Employment Agreement in this Case — Stunning Success and an Abrupt Firing

In 2015, a company hired a Vice President of Sales and Marketing. The company drafted an employment agreement, which the candidate signed without alteration. The agreement gave the new VP an annual base salary of $145,000 and stated that the employment would be at will. It also provided a commission of 3.5 percent of the VP’s net sales. There was no definition of net sales and no other explanation concerning the commission arrangement in the employment agreement.

After months of negotiation, the VP secured a prominent client’s agreement to amend its sales contract. It was the largest contract of its kind in the company’s history. The commission due the VP would have been roughly $1 million. The VP relayed his success to company leaders. The CEO immediately requested a meeting with him. As it turned out, this meeting was not to congratulate the VP, but to fire him, effective immediately. The next day, the client signed the sales contract amendment that the VP had negotiated. The company did not pay the VP any commission, so he sued.

The Trial Court Decided in Favor of the VP

At trial, the court instructed the jury that the VP’s sales included all sales for which he was the procuring cause. A procuring cause is the principal and immediate cause of a sale. The Court reiterated that it need not be the sole cause, and an agent is said to be the procuring cause of a sale when his acts have so contributed to bringing about the sale that but for his acts the sale would not have been accomplished. The fact that the VP was discharged prior to the time this sale was completed does not bar his right to a commission if he was the procuring cause of the sale. The jury found for the VP. He was awarded over $900,000 in compensatory damages for unpaid commissions and over $80,000 in prejudgment interest, and post judgment interest at five percent.

The Court of Appeals Reversed the Judgment of the Trial Court

The Court of Appeals for the First District of Texas reversed the trial court’s decision and rendered judgment for the company. According to the appeals court, the contract unambiguously entitled the VP to commissions only for sales made during his employment, not for sales that closed after he was terminated.

Texas Supreme Court Reversed the Court of Appeals Decision

The Texas Supreme Court reversed the appeals court decision, holding that: “When a seller agrees to pay a sales commission to a broker (or other agent), the parties are free to condition the obligation to pay commissions however they like. But if their contract says nothing more than that commissions will be paid for sales, Texas contract law applies a default rule called the ‘procuring cause doctrine.’” Under that rule, the broker is entitled to a commission when “a purchaser [was] produced through [the broker’s] efforts, ready, able, and willing to buy the property upon the contracted terms . . . In this case, the agreement between the parties was silent about any exceptions to the duty to pay commissions for sales that petitioner procured. The procuring cause doctrine therefore applies.”

At Will Employment: An Employer May Terminate an Employee Any Time With or Without Cause

This decision of the Texas Supreme Court decision may contain hope on future challenges to this application of the procuring cause rule. In this case cited here, the appeals court questioned whether the application of a doctrine originally developed in the context of real-estate sales is appropriately used in the context of at-will employment. Does an independent broker have more rights to a commission than an at-will employee who is also paid commissions? At the very least, employees whose compensation includes commissions should anticipate that many employers will now amend their employment agreements to limit commission payments through terminations of employment.

Notably, this decision, taken together with the recent decision in the case of Crane v. Rave Restaurant Group, is good news for those seeking to enforce employment contracts and an employer’s promises, especially when it appears that an employer is backing out of a deal after the executive has substantially performed his or her part of the employment contract. Here is the link to that article Fired CEO Sues Former Employer Over Stock Award.

Our Employment Lawyers Provide Perspective on Employment Agreements

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Pay Discrimination Affects Women in Texas and Their Families

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In Texas, a woman on average earns only 79.4% of what a man doing the same job for the same employer earns. That gap is greater than the national average, and even greater for women of color. The difference in Harris County has increased since 2017. In a real-life example, this means that if a man makes $51,000, a woman in the same position is likely to early roughly $40,000. It is as if she stopped working at the end of October instead of the end of December.

To be blunt, women have less money to live on, less to support their families, less to retire on, and are more likely to live in poverty. Yet, gender wage discrimination is clearly illegal under both federal and Texas law. So, why does this keep happening, and what can we do about it?

Some of the answers may require action by the Texas legislature. But effective and prompt legal representation can also make an enormous difference.

Time is not a Woman’s Friend. Do not wait! Reach out to the Employment Lawyers at Kilgore & Kilgore.

If you are not paid what your male counterparts are paid for doing the same job, you may be the victim of illegal wage discrimination. But you must reach out to an experienced employment lawyer quickly. The deadlines for filing a claim are as short as 180 days. Instead of sitting and stewing over an unfair situation, call us.

Our employment lawyers have a wealth of experience with employment discrimination claims. Fill out and submit the form you reach by clicking on this link Contact Kilgore & Kilgore or call us at (214) 949-9099.

Texas Equal Pay Law Addresses Pay Discrimination

The Texas Equal Pay Act provides that every woman employed by the state of Texas must be paid the same as a man when performing the same kind, grade, and quantity of service and that no distinctions in compensation may be made based on sex. There is no comparable, wage-specific state law that covers private employers.

However, the Texas Human Rights Commission Act (THRCA) prohibits employment practices that discriminate based on race, color, disability, religion, sex, national origin, or age. The law covers employers with fifteen or more employees and is enforced by the Texas Human Rights Commission. This is the avenue available for those who work for private employers and who choose to pursue a state law claim.

Federal Laws on Pay Discrimination

The federal law known as the Equal Pay Act requires that a man or a woman in the same workplace be given equal pay for equal work. Their jobs need not be identical. The law prohibits gender wage discrimination if workers perform jobs mandating equal effort, responsibility, and skill in similar work environments. Its definition of “wages” includes items such as company cars, health insurance, and bonuses. Like the THRCA, it covers employers with fifteen or more employees.

Not all pay differentials are evidence of illegal discrimination. Under the federal Equal Pay Act, an employer may pay different rates to a man and a woman based on:

  • a seniority system;
  • a merit system;
  • a wage system based upon quantity;
  • a system based upon quality standards; or
  • a pay rate system based on factors other than sex (such as geographical location).

The Lilly Ledbetter Fair Pay Act amended federal fair employment laws so that each paycheck affected by an employer’s prior discriminatory practice or decision triggers a new deadline for filing a pay discrimination claim. This law extends the deadline for filing a claim when the person who was being underpaid did not learn of the underpayment for months or even years after it occurred.

In addition to the Equal Pay Act, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sex. This includes pay discrimination. The Equal Pay Act and Title VII are different in terms of how they are enforced, what they cover, and which legal remedies they offer workers, so there is often a good reason to sue under one rather than another, or under both.

In the end, however, workers who believe that they are victims of wage discrimination have a variety of choices about how to advance their claims of unlawful conduct. But evaluating and choosing among these options takes the careful advice of an experienced attorney.

How it Actually Works – the Mechanics of Filing a Claim of Pay Discrimination

If you have experienced pay discrimination by your employer in violation of federal law, you are required by law to file a claim with the EEOC within 300 days of the violation. If you want to file a claim under Texas law, you must file a claim with the Texas Workforce Commission – Civil Rights Division within 180 days of your pay discrimination. Fortunately, both the EEOC and the Texas Workforce Commission accept claims for each other. So usually, if you file a claim with one, you have filed a claim automatically with the other. The time limits under the federal Equal Pay Act are slightly longer, but still short. These are administrative proceedings, and a few cases are resolved at this stage. You have the option to bring a lawsuit in either federal or state court once you receive your notice of right to sue.

In state and federal lawsuits, the individual claiming discrimination bears the initial burden of demonstrating a difference in pay for the same work. In Lindsley v. TRT Holdings, Inc., a recent Fifth Circuit Court of Appeals case, the plaintiff brought a lawsuit under the federal Equal Pay Act and Title VII of the federal Civil Rights Act. The court held that the plaintiff had shown that she was paid less than her immediate predecessors who were male. That, at the outset, was enough to maintain a claim.

In cases like these, the burden then shifts to the employer to show that the gap is the result of some nondiscriminatory reason. This can be a tricky turn to navigate, and it takes the assistance of a skillful employment law attorney.

Kilgore & Kilgore Employment Lawyers Can Help You Navigate the Options You Have in a Pay Discrimination Claim

Our Texas employment lawyers have experience with employment claims under a variety of state and federal laws. Contact us if you believe that you have been the victim of wage discrimination or other workplace problems. Reach out to us for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you for a frank discussion of the facts of your case.

Fifth Circuit Appeals Court Holds that the Single Use of the N-Word Can Support a Federal Civil Rights Claim of a Hostile Work Environment

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A black man’s supervisor at the French Market in New Orleans called him a “Lazy Monkey A__ N_____” in the presence of his co-workers. It only happened once, although there was abundant other evidence that he was harassed because of his race at his job, which is described as a hostile work environment. He was consistently denied a promotion. He was treated less favorably than other employees. No one took corrective action.

Anthony Woods Filed a Lawsuit with Claims of Violations of Many Different Federal Statutes and the U.S. Constitution, Including a Hostile Work Environment

Anthony Woods filed a lawsuit alleging race discrimination, disparate treatment, and a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964. He made allegations under Section 1981 of the Civil Rights Act of 1866. He claimed religious discrimination and retaliation also under Title VII. He claimed violations of the First Amendment and Fourteenth Amendment to the Constitution. He also claimed conspiracy under Section 1985 of the Civil Rights Act of 1871.

Woods Did Not Have A Lawyer to Plead His Case

This was a pro se Complaint, that is, Anthony Woods filed his Complaint without benefit of a lawyer, based only on his own information and personal experience. But it failed to completely convince the court, despite the abundance of evidence, which contributed to his lack of success in court.

On Appeal, the Fifth Circuit Court held that a single use of the n-word can be enough to support a hostile work environment claim under Title VII. Three facts come to mind:

  • This decision is a shift, and it aligns the Fifth Circuit with other Circuit Courts on the same issue.
  • On the other hand, it may turn out to be a single “dirty word” decision that turns out to be extremely limited in scope on future cases.
  • And finally, it is hard not to think of what might have been a much broader ruling if only he had the help of a lawyer from the beginning to frame the arguments in such a way as to help the court arrive at a better decision.

Filing a Complaint on Your Own Could Cost You Success on Your Case. Do Not Go It Alone!

When you experience discrimination, harassment, assault, unjust termination, retaliation or have endured a hostile work environment because of race, sex, pregnancy, disability, age, or national origin, reach out to our employment lawyers. Fill out and submit the form you reach by clicking on this link Contact Kilgore & Kilgore. You can also call us at (214) 949-9099. Bring your employment law questions to us.

A Hostile Work Environment, No Luck at the Trial Court Level, and then the Department of Justice Saves the Day

In addition to the vile epithet, the man described other circumstances in his Complaint. These included shift and assignment changes, understaffing, a wrongful termination, and an incident during which Woods believed his supervisor threatened him with a screwdriver. Despite all that, the trial court dismissed his Complaint, agreeing with the defendant employer that “a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim.” So, Woods appealed this decision to the Fifth Circuit Court of Appeals.

Friend of the Court Amicus Brief Filed on his Behalf

Then, unbidden, the U.S. Department of Justice filed a friend of the court [amicus] brief on his behalf. Parenthetically, when Kristen Clarke was confirmed as the Assistant Attorney General for Civil Rights at the U.S. Department of Justice in 2021, many expected her to take a more proactive role in civil rights cases than had been the situation during the previous administration. In this new case, the question of whether the District Court erred in holding that “a single utterance of a racial epithet, despicable as it is, cannot support a hostile work environment claim under Title VII” was found to be sufficient to attract the attention of the Justice Department, leading to a result in Woods’ favor.

Title VII of the Civil Rights Act and a Deep Dive into the Definition of a Hostile Work Environment

Title VII prohibits several forms of employment discrimination, including many named by Woods. The law makes it an “unlawful employment practice” for an employer to discriminate because of a worker’s race, color, religion, sex [including pregnancy or sexual orientation], or national origin with respect to terms, conditions, or privileges of employment. Previously, courts have interpreted this to forbid the creation of a hostile work environment based on an employee’s membership in a protected class, such as race or color. To prevail on a claim of hostile work environment, a plaintiff must prove four things:

  • membership in a protected group;
  • unwelcome harassment;
  • that was based on the protected characteristic; and
  • affected a term, condition, or privilege of employment, if it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Courts consider the totality of the circumstances in deciding whether harassment alters the victim’s conditions of employment. These factors include how often it occurs, how severe it is, whether it is physically threatening or humiliating, and whether it interferes with an employee’s work performance.

In its opinion, the Fifth Circuit Court focused on two things. The first was the severity of the n-word epithet and the second was totality of circumstances within which it took place. The holding brings the Fifth Circuit Court into better alignment with the First, Second, Fourth, Seventh, Eighth, Ninth and District of Columbia Circuits.

These rulings do not, however, seem to extend into situations where some other odious epithet was used. There is a risk that this case will be narrowly cabined into situations where only one word is off limits.

A Win is a Win, but Much May Have Been Unnecessarily Lost

In his original Complaint, Woods advanced claims under a variety of statutes as well as the U.S. Constitution. Some, like the Constitutional claims, were never properly before the District Court, but others, including allegations of disparate treatment and racial discrimination under Title VII, fell apart for procedural reasons – problems like the failure to exhaust remedies and pleading deficiencies. If Woods had had the assistance of an experienced employment lawyer from the beginning, these claims might have survived.

Our Employment Lawyers Have Answers to Your Employment Problems and Questions

Do not try to go it alone like the man in this true story. Our Texas employment lawyers have experience with employment claims under a variety of state and federal laws. Contact us if you believe that you have been the victim of discrimination, harassment, retaliation, unjust termination, or other workplace problems. Reach out to Kilgore & Kilgore for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you for a frank discussion of the facts of your case.