Workplace Harassment and Discrimination are Illegal – Is it Legal to Fire LGBTQ People in Texas?

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The answer is complicated, but employees have many ways to defend themselves if they suffer a wrongful termination, workplace harassment or discrimination. Federal, state and local laws may be on the side of LGBTQ people in ways that you may not expect. In addition, a Supreme Court decision expected in the summer of 2020 may change the legal landscape in fundamental ways that will affect LGBTQ rights in the U.S.

The Fifth Circuit Court of Appeals, which includes Texas, has not interpreted Title VII of the Civil Rights Act of 1964 as a protection of the employment rights of LGBTQ people. Also, there is no state law in Texas that protects the employment rights of LGBTQ employees. However, there are certain local laws that protect specific subsets of employees, including public employees, from being fired based on sexual orientation or gender identification.

The long answer is far more complicated and perhaps more hopeful. Many believe that the door is open for creative advocacy — especially because of some recent Texas court decisions, based on older Supreme Court precedents, regarding discrimination of traditional sex stereotyping. Dicta in other cases suggest that change is bubbling beneath the surface of a (so far) consistent line of decisions that withhold employment rights for LGBTQ employees on a statewide basis. And the legal landscape could change dramatically by early next summer because of a trio of cases now pending before the Supreme Court.

Our Employment Lawyers Can Help You Fight a Wrongful Termination, Workplace Harassment and Employment Discrimination

If you believe that you were fired because you are a gay or transgender or if you suffer discrimination or harassment on the job, don’t give up. The Texas workplace harassment attorneys at Kilgore & Kilgore will fight for your rights. Click the following link to learn more about our representation in employment law cases: Texas Employee Advocacy. For a free review of the facts of your case, use this link to contact us through our website Contact Kilgore & Kilgore.

Federal, Texas and Local Employment Law on Workplace Harassment Today

Civil rights law in Texas is a multi-layered affair, made of federal, state and local precedents. Below is a brief explanation of employment law:

Federal law – Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But what does sex mean in this context? The question would be hilarious if it didn’t affect the legal rights of hundreds of thousands — maybe a million – workers in Texas. We can assume that, in 1964, Congress never meant to include in this statute sexual orientation or gender identification. At that time, Congress was grappling with race.

The U.S. Department of Justice has taken the position that under Title VII today, sex should still be understood as it was in 1964.The federal Equal Employment Opportunity Commission has taken the opposite stance, stating that discrimination based on sexual orientation and gender identity is prohibited.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

State law – State laws may be more, but never less, protective of employment rights than federal law. Twenty-one states and the District of Columbia have enacted laws that explicitly protect the employment status of gay and transgender workers. Texas has not.

Local law – Local laws may similarly be more protective of LGBTQ and transgender people than states or the federal government. Dallas, Fort Worth and Austin, for example, protect individuals from discrimination on the basis of sexual orientation and gender identity who work in private or city employment. Other localities limit protections to city workers or exclude gender identity as a prohibited basis for discrimination. The penalties for violating these local rules are often relatively minor.

State Law in Texas on Workplace Harassment Today

So, one can conclude that the state law in Texas today for LGBTQ workers is not as good as it could be, not awful, but completely in need of clarity. Enter the Supreme Court.

The Cases before the U.S. Supreme Court

On October 8, 2019 the Supreme Court heard oral arguments in three cases that could clarify the application of Title VII to the employment rights of LGBTQ employees. In the ordinary course of affairs, those decisions would come down in the late spring or early summer of 2020, right in time for election fever. Below is a brief summary of these cases:

Altitude Express Inc. v. Zarda, a New York case, was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who voiced concerns about being tightly strapped to Zarda during a tandem dive. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.” The full U.S. Court of Appeals for the 2nd Circuit ruled for him. Sadly, he died in a base-jumping accident before the case came to the Supreme Court.

In Bostock v. Clayton County, Georgia, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII did not protect Bostock’s employment rights on the basis of sexual orientation. Gerald Bostock ran a program that recruited volunteers to advocate for abused and neglected children. He was fired after he joined a gay recreational softball league, from which he also recruited volunteer advocates. Bostock insisted that, contrary to pretexts offered by his employer, he was fired because he is gay. His lawsuit was dismissed because lower courts ruled that Title VII did not cover sexual orientation.

Bostock and Altitude Express are being considered together by the Supreme Court, as bearing on the same narrowly-defined legal question.

In R.G. and G.R. Harris Funeral Homes v. EEOC, the Supreme Court will take up the issue of transgender rights under Title VII. Aimee Stephens, who had presented as a man prior to 2013, was a funeral director at the Harris Funeral Homes. She suffered from gender dysphoria — a mismatch between the sex assigned at birth and a person’s gender identity — and had decided to transition. Before surgical procedures, her doctors suggested that she live for a year as a woman.

She informed her employer that, on her return from vacation, she would present as a woman in appropriate women’s business attire. She was fired before she could return. The EEOC took the case against the funeral home. The Eastern District Court of Michigan held for the funeral home, but the 6th Circuit Court of Appeals reversed that decision, holding that Title VII protects transgender people.

Much ink has been spilled about what the Supreme Court may do with these cases. Some focus on the possible effect of Justice Kennedy’s retirement, or try to read the tea leaves of Justice Kavanaugh’s social attitudes. Some in the audience at oral argument thought that a split decision might possible, especially since the three cases seem to be considered as two. Could the Supreme Court extend Title VII protections to gay workers, but not transgender people? None of this speculation is necessarily useful. But what may generate more light comes from the 2nd Circuit Court of Appeal’s articulation of three possible theories under which an advocate might argue that Title VII should cover gay or transgender employee rights. It is particularly intriguing that some of the 5th Circuit’s thinking about sexual stereotyping seems similar.

Three Theories

In Altitude Express, the 2nd Circuit outlined three rationales under which a gay employee might raise sexual orientation discrimination under Title VII:

  • the discrimination is motivated at least in part because of an employee’s sex;
  • the discrimination is based on sex stereotyping and assumptions about how each sex can or should be; and
  • the discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

Will the Supreme Court find any of these theories compelling in any or all of the three cases it has chosen to consider? The first point has a certain literal, textual appeal. If Sue marries Bob, her boss is likely to congratulate her. If Bill marries Bob, Bill may get fired. What is the difference between Sue and Bill? Their sex — the discrimination is motivated by sex. However, as the stricter constructionists may believe, Congress in 1964 probably meant biological sex as determined by physical characteristics. The current administration’s rumored interest in a regulatory redefinition of sex to refer only to DNA evidence could scramble this.

The second point above has some strong Supreme Court heft behind it under Price Waterhouse v. Hopkins. It’s a second line of authority. The 5th Circuit is already mulling this.

The third point above is derivative of the first. The Supreme Court’s decision in Obergefell v. Hodges found that the right to marry is guaranteed to same-sex couples by the Fourteenth Amendment and casts a proverbial “cloak of protection” (or to use Justice Douglas’s language, “a penumbra”) around associational relationships. It is not clear how this third theory might apply to Aimee Stephens. This is concerning because transgender people are among the most vulnerable to employment discrimination, the resulting poverty, ill health and even workplace violence.

Sexual Orientation and the Law – Strategy and Tactics

This lack of certainty makes the disputes about employee rights for transgender and LGBTQ workers difficult. On the other hand, the layered nature of the law means there are different legal avenues to pursue. Whatever news comes down in May or June of next year, there are options. Here is a brief summary:

  1. If the Supreme Court decides that Title VII protects the employment rights of gay and transgender employees, then that is the law of the land. State and local authorities may try to limit the meaning of employment rights, but that looks like a losing cause;
  2. If the Supreme Court decides to protect gay workers, but not transgender workers, there are still options.
    1. The first option is creative advocacy based on existing Supreme Court cases, especially on the basis of gender stereotype precedents.
    2. The second option is federal legislative action to amend Title VII. The U.S. House of Representatives has passed the Equality Act, which would accomplish this task, but its fate looks dim in the Senate.
    3. The third option is state legislative action to explicitly protect transgender people. Ditto for strengthening protections at the local level.
  3. If the Supreme Court decides to protect neither gay nor transgender employees, Texans will be in no worse position than they are today. The remedies are much as outlined above, but with a broader focus.

Curious About Employment Discrimination, Workplace Harassment and Wrongful Termination?

If your employment rights were violated, if you suffered a wrongful termination, and you are gay or transgender, take heart. You are not alone. There are many legal remedies for these forms of abuse. Click this link to read more about our employment law practice Employment Retaliation. Going public about employment rights may help you protect yourself and others. Contact the employment law attorneys at Kilgore & Kilgore for a free evaluation of the facts of your case. Call or contact us by clicking here and sending us a contact request form Contact Kilgore & Kilgore.

What Workers Should Expect About the Privacy of Employee Communications – How They Can Protect Their Employee Rights

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Employee records and employee communications are stored and shared electronically almost universally now. Texas and federal laws have played catch-up with technology in defining the rules as to who, including the employee and the employer, has a legitimate interest in knowing about workers. In other words, what information should an employee reasonably expect to share and what an employee may keep to itself. Considering the growing interest in protecting data, what can an employee do when the employer crosses the line or fumbles the issue so badly that other people take your data, even possibly about your non-work life? So far, what Texas employees who work for private employers have are some very fact-and-circumstance-specific rules, sometimes organized around the kind of information at risk, and sometimes organized around the means of communication, or a mix thereof.

Many employees are concerned about the privacy of their personal phone calls, texts, emails and social media posts at work. It’s good to understand employee rights because employers have broad, but not unlimited, rights to monitor communications that make use of employer-owned phones, computers and networks. Employees have the right to expect that personal data is protected. Learn how you can protect your employee communications.

Our Employment Lawyers Can Help You Protect Private Employee Communications

If you believe that your right to keep personal information and personal employee communications private was violated by your employer, the Texas employment attorneys at Kilgore & Kilgore may be able to help. Click the following link to learn more about our representation of employment rights in the workplace: Employee Rights in the Workplace. Use this link to contact us through our website for a free evaluation of the facts of your case: Contact Kilgore & Kilgore.

Employee Rights Regarding Phone Calls

Under the Texas Anti-Wiretapping Law, an employer commits a second-degree felony when it intentionally intercepts a wire, oral or electronic communication without consent. The critical concept is consent. Since Texas is a one-party consent state, a phone conversation may be recorded with the consent of one party, such as a supervisor, without the consent or knowledge of the other person on the phone, including an employee. Remember that this may include calls placed from a private phone to an employer phone or vice versa.

Under federal anti-wiretapping law, an employer may monitor its own telephones to protect its system from being misused. If employers do not give employees prior notice that all phone conversations are monitored and an employer eavesdrops even after it is apparent that a phone conversation is private, an employee may have an invasion of privacy claim. Many employers solve this problem by giving notice in an employee handbook.

The bottom line: You should assume that calls placed to or from a work phone are not shielded by privacy laws. There are exceptions, but it may take litigation to enforce these, and by then, of course, your information may have been compromised.

Employee Communications on Workplace Computers

Texas law generally prohibits unauthorized access of computers, their networks, and their systems. However, an employer may access a company-owned computer even if it is in the possession or control of an employee. This right extends to an employee’s use of a private email account protected by a personal password, using the company email system and stored on a company-owned computer. The key concept is employer ownership of the hardware, software or the system. The issue can become far more complicated, however, when an employer encourages employees to use their own electronic devices at work or during working hours.

The takeaway: An employee has only very limited, if any, reasonable expectation of privacy when using a company-owned computer, regardless of location or account accessed. Employers are very often advised to adopt communications guidelines that discourage the use of personal devices for work purposes, simply to avoid confusion about privacy rights.

Employee Communications on Social Media

When an employer’s own policies authorize review, the federal Stored Communications Act (SCA) permits employers to access all private communications stored on an employer-provided wire or electronic communication services. The key concept is employer ownership of the device or service. From a practical perspective, it would be rash for an employee to leave personal passwords on an employer-provided device, since this gives the employer access to that sensitive data.

However, the SCA prevents employers, without employee authorization, from reviewing an employee’s private communications not stored in the employer’s system, including an employee’s personal secure website, private Facebook or other social media page, or personal emails provided by a third-party internet or email service provider. Beyond that, however, we are in the uncertain realm of “what ifs.”

What if an employee uses private media to post genuinely offensive images or threats of violence about co-workers? This may run afoul of criminal statutes.

What if the employee handbook covering unionized employees broadly prohibits employees from posting statements online that could “damage the company, defame any individual or damage any person’s reputation?” The National Labor Relations Board has ruled that such a policy violated the National Labor Relations Act because it interfered with an employee’s rights to engage in protected activities.

What if an employer encourages employees to use their own social media outlets to promote the company’s products or services? It may become unclear who owns or should control the social media account of an employee who is essentially acting as an in-house influencer.

The issue: In general, an employee who wishes to challenge an employer’s practice of accessing private or personal calls, internet activity, email accounts or social media accounts must:

  • demonstrate that the intrusion would be highly offensive to a reasonable person; and
  • refute the employer’s defense that the employee consented to the alleged invasion or had no reasonable expectation of privacy.

This can be a difficult argument to make, depending on the circumstances. An ounce of prevention may be the wiser route.

Medical Information, Banking Information, Tax Information and Employee Records

This is a slightly different kind of privacy issue because it relates to the security measures an employer uses in collecting, handling and storing employee records. Think of all the information you have given your employer: Social Security number, banking data, driver’s license number, medical information and family details. These categories of information tend to be protected by specific statutes. Protected health information, for example, is covered by the federal Health Insurance Portability and Accountability Act (HIPAA) as well as the Texas Medical Records Privacy Act.

Even if accessed or saved on a company-owned laptop, it is unlikely that any federal or Texas state court would grant an employer the right to review tax records without prior consent, given case law that consistently disfavors disclosure. Apart from the pieces, the kind of wholesale hacking operation that compromises large quantities of employee records is an identity theft nightmare, but it is also rare. The Texas Business & Commerce Law requires a company that loses sensitive personal information of employees through hacking to promptly notify the victims, so that they can take steps to protect themselves from identity theft. Identity theft is a federal crime, regarded as a felony offense and punishable by a fine, time in prison, and/or restitution to the victim. Any suspected misuse of personal data should be reported to the Federal Trade Commission.

A defensive approach: Now may be a good time to know more how your employer safeguards employee records. The hallmarks of a good information security policy may include:

  • designating all information relating to an employee’s personal characteristics or family matters as private and confidential;
  • releasing information relating to an employee only on a need-to-know basis, or if a law or court requires the release of the information; and
  • centralizing and processing of all information requests concerning employees within the company.

Read More about Employee Rights

If the privacy of your electronic employee communications or electronic employee records has been compromised at work, remember that you have employee rights that can be enforced under Texas and federal law. To read about some of the employee rights matters our employment lawyers have undertaken, click this link Employee Rights Articles. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Lessons for Texas Employees Who Have Experienced Workplace Harassment and Wish to Know Their Rights

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Should you ever be harassed at work, learn how to safeguard yourself, your situation, and your job from a legal standpoint. Your job is likely one of the most valuable things you have. Protect it. Recent news has focused on the problem of sexual harassment, but harassment can spring from many roots –including your race, national origin, religion, age, and disability. If you believe that you have been subject to workplace harassment, you should know two things. First, you have the right to equal opportunity and fair treatment. Texas and federal laws protect employee rights, so that employees can build for the future based on their employment accomplishments. Second, there are some simple steps you can take to protect yourself, and any claim that may arise from being harassed at work, even before you reach out to an employment law attorney.

Coping Mechanisms When Harassed at Work

If you have experienced workplace harassment, you will recognize the coping mechanisms:

  • Stage one is shock and disbelief. Did so-and-so really pat your behind? Was that a racial or ethnic slur you heard? Do you believe you were wrongfully terminated because of age? Was this a mistake or did you do something wrong?
  • Stage two is anger.
  • Stage three involves some strategic decisions about what to do next. Should you ignore it, look for another job, or pursue legal remedies?

For employees working through stage three, any of these decisions may be right. Many women who brought #MeToo claims, for example, have had to balance the risks of complaining about conduct versus the consequences of ignoring sexual harassment. In this article are several important lessons for employees who have experienced workplace harassment.

Our Employment Lawyers Can Help You Fight Workplace Harassment

If you believe that you have been harassed at work in violation of the law, the Texas employment attorneys at Kilgore & Kilgore will help you determine the legal remedies available to you and help you fight for your employee rights. Click the following link to learn more about workplace harassment Employment Discrimination. We offer a free review of the facts of your case. Use this link to reach us Contact Kilgore & Kilgore.

Was It Illegal Workplace Harassment?

Don’t spend too long on this step. Toss your legal questions to an employment lawyer. The time limits on filing a discrimination complaint with the Equal Employment Opportunity Commission, and many harassment claims take this form, are fairly short – generally 180 days from the incident (or up to 300 days for federal claims). A long delay may complicate or even bar a case.

Both the Texas Labor Code and the federal Equal Employment Opportunity Commission protect employees from discrimination and harassment. Other laws may apply depending on the nature of the harassment. Discrimination laws apply to employers with 15 or more employees (20, in the case of age discrimination) and to all state and local governmental entities regardless of the number of employees.

Workplace harassment is not limited to sexual abuse. It may involve any unwelcome verbal or physical behavior that is based on race, color, religion, sexual orientation, national origin discrimination, disability, age discrimination (over 40), pregnancy discrimination, or even gender identity. It is illegal when enduring the offensive conduct becomes a prerequisite to continued employment, or the conduct is severe or pervasive enough that a reasonable person would consider it intimidating, characterizing it as abusive behavior, or creating a hostile workplace.

The interpretation of these terms varies from state to state, however, especially with respect to gender and gender identity. The Fifth Circuit has determined, for example, that Texas law does not explicitly protect employees from harassment based on sexual orientation or gender identity. On the other hand, Texas law does appear to include gender stereotyping within the definition of harassment. Berating a group of male employees as “ladies” may constitute unwelcome verbal behavior.

Telltale Signs of Workplace Harassment

One unpleasant incident does not necessarily equal harassment, but repeated unwanted conduct may. To evaluate the abusive behavior, you should ask yourself the following questions. These are all serious signs of workplace harassment, and you should not ignore or endure them.

  • Has the abusive behavior escalated?
  • Do you believe that keeping your job or getting a promotion depends on submitting to unwanted conduct?
  • Have you suffered some harm, such as a demotion, a change in duties, particularly to ones that are not suitable for your skills and experience, a move to an unsuitable work space or the denial of a training opportunity because you have complained about the abusive behavior?
  • Have your complaints been mocked or ignored?

But Can You Prove Workplace Harassment?

This is often a problem especially because much of this conduct takes place in private. Take these steps to support your position:

Complain about it – promptly, in writing, and in detail to the appropriate human resources professional. You must make your case that the conduct was unwelcome, or if you were a witness or otherwise aware of it, that it created a hostile workplace or could be considered abusive behavior in the workplace. Also, complain about retaliation, if it happened.

Preserve records on your home computer or personal tablet. First, document the offensive interactions that you feel could be described as employee harassment, any interviews with others in the workplace, and complaints to management. Make note of dates, locations, witness names, and take photos, if appropriate. Keep printouts of offensive emails received. Make sure that you preserve this material at home. Documentation kept at work or on company equipment may disappear.

Talk to people who may have witnessed the abuse and ask them to write down their recollections. Not surprisingly, they may have experienced similar abuse. It may be better to have these conversations away from the workplace. Obtain printed copies of all comments received.

Exhaust internal remedies. Diligently pursue whatever grievance procedure exists in your workplace, even if you believe that it is not likely to be fruitful. Document all pertinent meetings, emails, or other correspondence.

Where there is no HR department, seek outside help. Often with a small company, or when the harasser is the boss, it may necessary to skip some of the preliminary steps and seek outside help immediately. The Texas Workforce Commission or the EEOC may be helpful. If you have not already done so, this may be the time to consider consulting an employment law attorney.

What Remedy Do You Want?

When all is said and done, decide the outcome you want. Do you want to be reinstated in your job, reassigned or promoted, if you believe a promotion was unfairly denied? Are money damages important to you? What about the cost of any medical treatment that has been necessary to help you deal with workplace stress? Do you want to see a change in policies and procedures? Should the harasser be removed? Do you just want to leave the job and start fresh with a positive recommendation?

Outside Remedies

There are generally two steps for an outside action. The first is a complaint to the TWC or the EEOC, and the second is a lawsuit. Some disputes are resolved via the TWC or EEOC process. This step generally involves attempts at mediation, or an investigation followed by, in some instances, a conciliation agreement that may yield monetary and other relief. If this is unsuccessful, an employee may seek to file a civil suit against the employer.

Your ability to bring a lawsuit is contingent on several things. To take legal action in either state or federal court, you must have a “right to sue” letter from the TWC or EEOC that will show that the agency has investigated the situation. Your ability to sue may also be affected by any confidentiality agreement you have signed with your employer, or whether you have an arbitration agreement. For these and other reasons, many employees resort to the court system only as a final step. This is where an employment law attorney can help you learn your options and probability of winning a lawsuit.

Read More about Workplace Harassment and Discrimination Lawsuits

If you have been the subject of workplace harassment, do not feel alone. You are one of many, and there are legal remedies for this form of abusive behavior. Going public about employee rights may also help protect others. Click here to read more about how our employment lawyers help resolve workplace claims Kilgore & Kilgore Dallas Employment Lawyers. Contact us to request a free evaluation of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

ERISA Disability Benefits Lawsuit Win Opens New Doors for Texas Disability Claims Denied

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Among ERISA disability claimants, there is widespread suspicion that benefits plan administrators routinely deny certain kinds of disability claims. Long-term disability claims may be denied when they mature from short-term disability into permanent disability claims. Plan administrators are sometimes accused of failing to request relevant medical records or harassing those with disability claims with repeated requests for duplicate medical records or tests. Critics speculate that reviewers have a financial incentive to deny disability claims, and that this prevents fair benefit decisions. Those receiving long-term disability benefits may be warned to assume that they are under surveillance.

Our ERISA Lawyers Help Long-Term Disability Benefits Clients Get the Help They Deserve

The Employee Retirement Income Security Act (ERISA) sets out rules for pension, health and disability benefits. The issue of long-term disability claim denials is legally and emotionally charged, to say the least. The compassionate ERISA lawyers at Kilgore & Kilgore understand the situation of those with long-term disabilities and work to apply Texas state and federal law to achieve fair disability benefits decisions. If your disability claim for long-term disability benefits was denied and you believe your claim was treated unfairly, contact us for a free review of the facts of your case by clicking here and sending a contact request from our website Kilgore & Kilgore.

Recent Disability Benefits Lawsuits Set Precedent for De Novo Standard

Under the legal standard recently set forth by the Fifth Circuit in Arianna M. v. Humana, courts may take a fresh look at benefit denials. Another recent lawsuit in the Northern District Court of Texas may push the precedent in an even more claimant-friendly direction. In this more recent lawsuit, the claimant won $9,000 a month for the months when his disability benefits went unpaid. That is good news for him, of course; but it may also be very good news for other Texas disability claimants who have been denied.

The Tangled Tale of the Disability Benefits Claimant’s Medical Records

In the Northern District lawsuit, the strangest part of the story of this long-term disability case is how the claimant’s medical records were handled and evaluated. In 2005, the claimant began experiencing back and vertabrae pain. The first physician he saw found that he had a degenerative disk condition but did not see anything significant on x-rays. The patient was referred to a psychiatrist, based on the possibility that his pain was related to anxiety. His condition continued to deteriorate, and he ultimately lost his job.

A few years later, he returned to the same clinic. This time, however, he was seen by an orthopedist who ordered an MRI. Upon review of the MRI, the specialist found that the patient’s back and vertabrae pain was caused by arthritic facet joints, with abnormalities clearly visible on the MRI. The claimant asked the plan administrator to contact this orthopedist. He also requested another review of his file. No one from the plan administrator’s office reached out to the orthopedist, reviewed his file or looked at his MRI. It is difficult to avoid the inference that the plan administrator cherry-picked the evidence in order to reach a conclusion that permitted the insurer to pay only limited benefits.

The Northern District Court’s conclusions, as listed below, were stark. For those with disability claims, the first point may be the most important. Here is a summary:

  • First, the court was not required to accept the plan administrator’s decision as presumptively correct, but it could review the record of the claim evaluation de novo.
  • Second, that the claimant was totally disabled under the policy, that his disability was not caused by a mental disorder, as defined in the policy, and so should not have been limited to 30 months of payment.
  • Third, that the claimant was owed $9,000 per month for all months that were unpaid.

Abuse of Discretion Versus the De Novo Review – This Difference is Key for Disability Claims

Whether courts may re-evaluate benefit payment decisions without evidence that plan administrators abused their decision-making power has been argued for decades, ever since the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch (1989). Under the abuse of discretion standard, which courts followed for much of that time, plaintiffs almost always lost because they had to overcome a presumption that the benefit decision was correct. The argument for this position was essentially that plan administrator decisions should be made by those closest to the situation and too much second guessing by federal courts would simply encourage litigation.

A more recent trend permits courts to review some underlying evidence with fresh eyes. This is called the de novo standard. Most courts have now embraced the de novo standard with respect to some elements of a lawsuit. Plaintiffs, who have long felt aggrieved by unfair disability benefits denials, have a better chance of success under the de novo standard. Texas was among the last states to embrace this change. That is the significance of Arianna M. v. Humana (2017). Arianna M. is a relatively recent decision, so the reaffirmation of that principle by the Northern District Court in this recent case is also quite important.

Disability Claims and the De Novo Review, but of What?

This is now the burning question and the area where claim denied litigation is likely to develop. Courts have always had the power to review the actual words in plan documents under a de novo standard. If, for example, a plan gave participants 30 days to enroll, but administrative practice was to limit the enrollment period to 15 days, a court could conclude that the plan administrator had abused its discretion in limiting the time.

Arianna M., an ERISA benefits lawsuit, takes the next step, permitting a court fresh review of medical records as evidence already in the record that was available to the plan administrator. In Arianna M., it should be noted, the court finally affirmed the plan’s denial of benefits. The de novo standard may be plaintiff-friendly, but it does not always guarantee success.

In this latest decision, the Northern District Court appears to hew closely to the language of Arianna M., announcing at the outset that “the Court is limited to the administrative record, with limited exceptions that do not apply here.” But, in fact, the evidence that it considered does not appear to have been part of the medical records that was before the plan administrator, at least not to the extent that they were in Arianna M. This is a very small difference – hair-splitting perhaps – but it raises an intriguing question: is this a further step forward for the de novo standard? The answer may not be clear until new litigation occurs.

Our Dallas ERISA Attorneys Can Help You Fight Your Disability Benefits Claim Denial

If you believe your long-term disability benefits claim was unfairly denied, the compassionate ERISA attorneys at Kilgore & Kilgore would be happy to help you explore your legal options. Click the following link to learn more about our representation in another disability denial case Cancer Victim Gets Denied Benefits Overturned. For a free evaluation of the facts of your case, use this link to contact us through our website Contact Kilgore & Kilgore.

FLSA Protected Texas Employee Who Obtained Settlement for Retaliation Lawsuit

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The U.S. Department of Labor (DOL) filed a lawsuit against a Texas employer in federal court after an investigation by the Wage and Hour Division of the DOL. The DOL found that the employer violated the nursing mother provision of the Federal Labor Standards Act (FLSA) when it denied the employee adequate time and space to express milk. The settlement was based upon the employer’s retaliation against the employee. The DOL argued that the employee’s resignation was a constructive discharge under the FLSA’s anti-retaliation provisions. This case has implications far beyond the world of nursing mothers.

As part of the settlement agreement, Allegiance Behavioral Health Center, which operates a counseling office in Texas, has agreed to pay $22,000 to a former employee who claimed that her employer made her working conditions intolerable when she complained that she had no suitable place to express breast milk. She was forced to pump while sitting in her car, in full view of the public and co-workers. Rather than continuing to tolerate to these conditions, she quit. Since these conditions were so intolerable that a reasonable person would have felt compelled to resign, the quit was considered a constructive discharge.

Employer Strikes Back as a Result of an Employee Complaint Violating FSLA Provisions

As many employees realize, life can get suddenly and precipitously worse for an employee who complains about working conditions. The employer’s reaction can become more severe when the complaint is made to outside enforcement agencies such as the Equal Employment Opportunity Commissions (EEOC) and the Texas Workforce Commission (TWC). Employee rights guaranteed by law are worthless if they cannot be enforced because people are afraid to speak. That is why the anti-retaliation provisions of the FLSA are so important.

Our Employment Lawyers Understand the FSLA and Texas Employment Laws and Can Help You Resolve an Employment Claim

If you believe you have experienced retaliation because you filed a complaint about your working conditions, overtime pay denial, or employee misclassification as an independent contractor, talk to an employment lawyer at Kilgore & Kilgore. Click the following link to learn more about our representation in employment retaliation cases. If you have questions about your rights under the federal FLSA statute or Texas employment laws, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website and send it in. We are happy to provide a free evaluation of the facts of your situation.

FLSA Protection Against Retaliation

Section 15 of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

The law protects complaints made to the Wage and Hour Division at the DOL and many types of internal complaints to an employer. The law also protects complaints made by employees to the TWC and the EEOC. In fact, when an employee takes the time to file official complaints with these public agencies, such documentation may support the employee’s case should the matter be argued in court.

But few employees know their basic employee rights. The first step in protecting employee rights under FLSA or Texas employment laws is to understand what they are. The employment lawyers at Kilgore & Kilgore can help you understand your employee rights under state and federal law and may be able to take action to file a lawsuit if necessary.

FLSA Protection for Nursing Moms

Since 2010, the FLSA has required employers to provide reasonable breaks for employees to express breast milk in a place that is shielded from view and free from intrusion by co-workers and the public. A bathroom stall is explicitly not a suitable accommodation.

Before then, conscientious working moms who wanted to take care of their babies in the best way while on the job by providing breast milk had to go to lengths that might involve:

  • pumping in a bathroom stall;
  • packing the milk container into a nondescript lunch bag
  • putting the lunch bag in the breakroom refrigerator; and
  • hoping that no one opened the wrong bag and compromised the breast milk.

Among mothers with children under age 3, the labor force participation rate of married mothers is roughly 60 percent and for unmarried mothers 67.2 percent. The law seeks to recognize this demographic. Practice, however, often lags behind.

Wider Guarantees for Employees Under FSLA

FLSA is about much more than protections for nursing mothers. First enacted in 1938, it protects a wide array of employment rights including wage rates and working conditions. The employment lawyers at Kilgore & Kilgore help clients protect their rights under these wage and hour laws. Several hot button issues seem to recur, as described below.

Employee misclassification as independent contractors. Only employees are protected by the FLSA and the provisions of Texas employment law. Employers who want flexible staffing options and low labor costs have plenty of motivation to hire independent contractors instead of employees. Sometimes, however, this employee misclassification is not warranted by the facts of the working relationship. Courts have developed tests for distinguishing between employees entitled to the protections of law, and contractors, who have protections only in the terms of their own contracts. The central issue, however, is the degree of control exerted by an employer. The most frequently litigated issues are minimum wage and overtime claims, although any or all the protections of law can be at issue. Examples of employee misclassification come up with, for example, drivers, sales representatives, and gig workers, among others. Kilgore & Kilgore employment attorneys represented employees in numerous such cases. If you believe that you and other coworkers have been misclassified and are owed overtime or other pay, please contact us.

Failure to pay for required breaks. Federal law guarantees paid break time in limited circumstances, including time for nursing mothers to express breast milk.

Undercounting of time. Sometimes described as “donning and doffing” lawsuits, for the time it takes employees who must wear protective gear to put it on and take it off, these lawsuits cover much more. Also, employers must count and pay for the relatively small amounts of time it takes employees to perform tasks that are necessary to their jobs, if not quite core functions. As with employee misclassification lawsuits, the litigated issues may actually appear as minimum wage and overtime underpayment.

Failure to pay minimum wage or overtime pay. Sometimes underpayment issues are more blatant, as when an employer hires employees who feel vulnerable and are unlikely to complain because of language barriers or immigration status. To be clear, the application of legal employment protections is not dependent on immigration status. These issues arise in the construction industry, home health care, and garment trades, as well as others.

Learn More about FSLA, Retaliation, Employee Misclassification, and Overtime Underpayment Lawsuits

If you have been denied your legal rights and then suffered from employer retaliation after making a complaint, if your paycheck was short, or you have learned that your overtime pay is the result of employee misclassification you may benefit from the experience and knowledge of the employment law attorneys at Kilgore & Kilgore. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Retaliation Found by Jury to be the Reason Behind a Wrongful Discharge Upheld on Appeal

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Recently, the Fourteenth Court of Appeals in Texas upheld a jury’s conclusions that an employer was liable for a wrongful discharge under Title VII of the Civil Rights Act when it fired an employee in retaliation for the employee’s complaints of age discrimination and gender discrimination. The Appellate Court upheld the jury’s award of $150,000 for damages including mental pain and suffering caused by the employer’s treatment of the employee.

This ruling highlights some key concepts of employment retaliation and discrimination law that can be difficult to make sense of for employees and employers who aren’t working with these complex cases every day like the employment law attorneys at Kilgore & Kilgore. For example, this case shows how an employee’s actions can aid the success of a retaliation or discrimination lawsuit in the court system. In this case, the employee filed a complaint of age discrimination and gender discrimination with her employer. Later, she filed a civil rights claim with the Equal Employment Opportunity Commission (EEOC) and with the Texas Workforce Commission (TWC). In other words, the law allows an employee to stand up for her civil rights, even when she isn’t perfect. If a jury or appeals court can conclude from the evidence that an employee reported discrimination clearly enough in lay terms to the employer and legal authorities, and that the employee timely files with the EEOC or TWC to obtain a Notice of Right to Sue, that’s enough to bring a lawsuit for employment discrimination or retaliation.

Do You Have a Strong Case for Employment Discrimination or Retaliation?

Of course, whether an employment discrimination or retaliation lawsuit, once filed, is likely to be successful is another question that can be answered only by an experienced employment law attorney. And just because a jury found in favor of the employee in this case does not mean another jury would reach the same conclusion even in a case with similar facts.

The important thing is to have an experienced employment law attorney evaluate your claim as early as possible to advise you of your rights while you still have time to bring a lawsuit. As this case shows, in Texas, you also must properly report the discrimination or retaliation before you can file a lawsuit. The attorneys at Kilgore & Kilgore have years of experience handling these cases and are available for a free evaluation of the facts of your case. Contact us to get the conversation started by filling out the form and submitted it through our website, just click here Contact Kilgore & Kilgore or call us at 214-969-9099.

Employee Says She Was Fired for Reporting Age Discrimination and Gender Discrimination

The case is Apache Corporation v. Cathryn Davis. Ms. Davis began working for Apache in 2006 as a senior paralegal. The facts suggest that things were going fine until 2010 when, according to Ms. Davis, she began being passed over for promotion and raises because of her age. Younger employees were promoted, and she said she felt mocked by her supervisor when she raised the issue. Davis also observed that women had not received titles or promotions, that Apache allowed a male paralegal to transfer to a business unit with promotional opportunities, that a female employee was replaced by a male, and that only male litigators were hired. Apache later presented evidence that, at the same time, Ms. Davis constantly asked for schedule changes that were contrary to company policy. Apache said she arrived late, took long breaks, left late — and worked overtime without approval — after she had been specifically told not to. Ms. Davis said she needed a flexible schedule in order to drive her daughter to and from college classes. She claimed that the harsh way her supervisor told her to stop working overtime caused her to go into convulsive breathing.

Employee Suffered from Employer Retaliation After She Complained to the Company About Discrimination

The employee said the company had a long history of permitting flex time and argued that its change in policy was deliberately setting her up for failure. She also stated that, from 2010 to 2012, whenever she again raised the possibility of promotion, her supervisor responded with “little jabs” that Ms. Davis couldn’t tolerate. In a later email to Apache, she described her supervisor’s responses as “beat downs” and “intimidation” that caused her “great emotional distress” that ended with her in tears.

In 2012 she filed an internal complaint with Apache, alleging emotionally abusive behavior, age discrimination and “woman discrimination.” As for the “woman discrimination,” she explained that she had “observed and experienced the company’s pervasive negative attitude toward advancing or recognizing the contributions or accomplishments of its female employees.” She stated that, after she submitted this complaint, she was shunned by her supervisor. After an internal investigation, Apache found no evidence of discrimination.

However, allegedly in part based on Davis’s failure to follow company policy regarding overtime and work schedules, in January 2013, Apache fired Ms. Davis. She then filed a complaint with the EEOC, checking the boxes for both retaliation and age discrimination. After Davis received the right to sue letter from the EEOC, she then filed a lawsuit in the trial court, alleging both retaliation and age discrimination.

The Employer Then Retaliated Against the Employee Alleging Discrimination

For purposes of our discussion, the focus of Davis’s lawsuit is her claim that Apache fired her for reporting gender or age discrimination. Reporting discrimination is a protected activity under civil rights law, which encourages employees to come forward and report apparent discrimination. The jury found in favor of Davis on her retaliation claim: the jury found that Apache fired her in retaliation for reporting age or gender discrimination. And, because they believed that her supervisor treated her in an emotionally abusive way, the jury awarded Davis $150,000 for emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Also, the jury awarded Davis attorneys’ fees, appellate fees, with prejudgment and post-judgment interest.

The Employer Appealed the Verdict and Argued the Evidence Did Not Justify the Jury’s Verdict

Apache appealed the ruling to the Court of Appeal of Texas in Houston. At first, it might seem surprising that a corporation would appeal an award to a plaintiff of only $150,000. In fact, Apache didn’t even specifically challenge this award. Rather, it generally argued that the jury’s conclusions about the wrongful discharge were not supported by the facts of the case and that the award of attorneys’ fees was improper.

Arguably, the attorneys’ fee award is the key to understanding the appeal. Compare the numbers: $150,000 to Davis for damages and $767,242 in attorney fees. On appeal, it is fair to assume that Apache’s primary goal was to get this huge award of attorneys’ fees reduced. And, it could do so in several ways.

First, in Texas, a plaintiff who is successful in a retaliation lawsuit can be reimbursed for reasonable attorneys’ fees. So, the entire fee award could be called into question if Apache could convince the appeals court that the evidence did not support the jury’s conclusion that Apache fired Davis in retaliation for her civil rights complaint. Second, Apache tried in various ways to argue that the attorneys’ fee award was too high. Apache’s appeal mostly failed. Apache argued that the facts could not support the jury’s conclusions that Ms. Davis reasonably believed she was discriminated against, that she clearly reported the discrimination on time to Apache and the EEOC, and that Apache fired her because she violated company policies.

But here is the most important thing to understand about these arguments on appeal. An appeals court is required to defer to a jury’s findings on the facts of a case unless no reasonable person could reach the same conclusion or, as the court opinions say, unless the jury’s decision on the facts is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The reason for this, roughly stated, is that our justice system gives great respect to juries of our peers, who are direct witnesses to the live testimony of the parties in the case. We are supposed to trust juries to consider a witness’s demeanor, tone and facial expressions, for example, while testifying. And this puts other evidence — such as emails and written complaints presented in this case — into context. So, unless there is essentially no way a jury could reasonably find a given fact necessary to the jury’s verdict, the appeals court can’t re-decide that fact later. There is no point in Apache arguing, for example, that the evidence more strongly suggests that Davis was fired for violating company policy, if there is some evidence that she was fired in retaliation for her discrimination complaint.

Employer’s Arguments on Appeal Failed the Standard of Review of the Jury’s Conclusions

Given this standard of review of the jury’s conclusions, the appeals court rejected Apache’s arguments. It stated that the jury could reasonably conclude that Davis properly filed an internal complaint alleging both age discrimination and gender discrimination. Similarly, there was enough evidence that she properly filed her EEOC complaint. And, she had also filed a complaint and email response with the Texas Workforce Commission that made her gender discrimination claim clear. And, she included her email to Apache as part of her filing with the EEOC. All this was enough to establish that she properly reported her gender discrimination claim.

Finally, the jury could reasonably conclude that Ms. Davis was fired in retaliation for trying to protect her civil rights — as opposed to being fired for willfully violating Apache’s company policy about scheduling and overtime. The jury found that she did violate the policies, but it reasonably concluded that Apache actually fired her in retaliation for her discrimination complaint based on evidence that:

  • The employee was fired a relatively short time after she filed the complaint.
  • Her supervisor shunned her and reduced her workload right after the complaint.
  • The employer gave several contradictory reasons for firing her, which changed over time.

What This Case Means for Future Employment Discrimination and Retaliation Claims

Some important takeaways from this case include that employees do not have to be perfect to claim legal protection for violation of their civil rights. The jury concluded that Apache could have fired Ms. Davis for misconduct. But, according to the jury, it didn’t. Instead, it fired her for calling Apache out on what she reasonably perceived was age discrimination and gender discrimination.

Second, an employee’s civil rights don’t have to have been violated for an employee to protect herself or himself against retaliation for engaging in protected activity. If an employee reasonably believes he or she has experienced unlawful discrimination at work and reports it to the employer and legal authorities, like the EEOC and the TWC, the employer cannot fire the employee for this whistleblowing behavior.

If you have experienced employment discrimination or retaliation, the employment law attorneys at Kilgore & Kilgore can help you understand your rights and whether the evidence supports a lawsuit. We can also advise you regarding whether you may get your rights vindicated without going to trial by reaching a settlement with your employer. Click here Contact Kilgore & Kilgore to start a free review of the facts of your case. Or, Call us 214-969-9099.

The Anti-SLAPP Statute Protects People from Defamation Lawsuits That Infringe Upon Their Rights

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The Texas Citizens Participation Act, or TCPA, commonly referred to as the Anti-SLAPP statute protects people from lawsuits that infringe upon their rights to free speech or free association. While this has generally dealt with defamation cases, the Anti-SLAPP statute is finding itself to be more and more relevant in employment cases dealing with non-competition agreements, interpreted as the right to free association, and trade secrets, interpreted as the right to free speech.

If you find yourself being sued with regard to claims affecting your rights to free speech or free association, you have an arrow in your quiver with the Anti-SLAPP statute. Anti-SLAPP is an acronym for Strategic Lawsuits Against Public Participation. If you publicly criticize a company or entity for wrongdoing, such as polluting a river or performing surgery on a healthy knee, that company or entity could sue you for defamation. However, you could fight back under the TCPA.

Kilgore Attorneys Defend People Using the TCPA

Are you being sued for defamation after speaking out about a company or entity? The lawyers at Kilgore & Kilgore can help you decide on the best defense, including the exploration of whether or not an Anti-SLAPP motion is a useful defense. Are you being sued for violating a common law or contractual non-competition claim, then Anti-SLAPP statute can help in your defense? Finally, if you find yourself being told to cease and desist contacting former customers or vendors, you guessed it, the Anti-SLAPP statute! Click here to reach out to us Kilgore & Kilgore. One of our attorneys will respond with a free review of the facts of your case. To learn more about this topic, click here Defamation Lawsuits – Hit Back When You Get SLAPPed.

An Anti-SLAPP Lawsuit Has a Time Limit

Any time you’re involved in litigation, you must understand the required dates for filing court documents such as answers, motions, and appeals. If you miss a filing deadline, you could not only be out of luck, but it could also prevent you from having your day in court. Additionally, depending on your case, you could end up stuck with court costs and the other party’s attorney fees. Sure, your attorney is the one responsible for keeping track of and handling these details, but a wise person understands the responsibility of being cognizant and involved in his or her case. In Texas, if you’ve been sued for defamation, and you’d like to fight that claim, you must act quickly or else your case may be dismissed with a bill for the attorney’s fees of your opponent.

Anti-SLAPP Statute Definition

Under the TCPA, if you are exercising your freedom of speech or your right of association regarding a matter of public concern by complaining publicly about the acts of a company or entity, seeking to contact former customers or compete with a former employer, then you may defend yourself by filing an Anti-SLAPP motion for dismissal of your case using the TCPA. If you’re successful in getting your case dismissed, then the court will award your attorney’s fees incurred as well as penalties against the company or entity for bringing the lawsuit.

If the lawsuit against you is meritorious, meaning it meets the legal definition of defamation, then you can’t defend yourself using the TCPA. However, if the company or entity brings a defamation lawsuit to harass or intimidate you for speaking the truth, or the company or entity wants to drag out the litigation, to punish you by raising your costs, then these frivolous lawsuits can be fought.

Filing an Anti-SLAPP Lawsuit

Like other litigation, you must file your Anti-SLAPP lawsuit in a timely manner or risk getting your case dismissed. The TCPA protects individuals from retaliatory lawsuits for defamation that seek to intimidate those individuals on public concern issues, such as environmental dumping or toxic waste containment. The individual who is sued for defamation starts the clock on a TCPA defense by filing a motion to dismiss with the court. The motion must be filed no later than 60 days after you are served with the defamation lawsuit. If you don’t file the motion within the 60-day time period, you lose the protections of the TCPA. In certain instances, the court may extend this time period, if you show good cause.

Defending an Anti-SLAPP Lawsuit

If the court holds a hearing on the motion to dismiss, then you must demonstrate that the company or entity which filed the lawsuit in response to your exercising your right to free speech or free association. If you satisfy the court on this demonstration, otherwise known as satisfying the burden of proof, then the company or entity must establish each factor of its claim in order to prove that the lawsuit wasn’t retaliatory. This is a difficult burden for the company or entity to meet, because the law gives protection to individuals exercising their right to free speech regarding public concerns.

Example of an Anti-SLAPP Lawsuit Getting Dismissed

Recently, the Dallas Court of Appeals issued an opinion on an Anti-SLAPP defense. The case, known as Mancilla-Sales Tax International v. Taxfree Shopping, Ltd., was handled by Clark B. Will of Kilgore and Kilgore. In November 2018, the Dallas Court found that the plaintiff in this case, the individual who was sued for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (TUTSA) asserting the Anti-SLAPP statute defense should be dismissed.

In this case, a former employee, Evelyn Mancilla, and her new company, Sales Tax International, LLC (STI), were sued by her former employer, Taxfree Shopping, Ltd. (TFS). TFS was formed in 2001 as a sales tax refund business. Ms. Mancilla began working at TFS in 2007 and was promoted within the company to the rank of number three person in TFS. In May 2017, TFS terminated Ms. Mancilla, and promptly thereafter, she started STI, a competing company.

In June 2017, TFS sued Ms. Mancilla and STI for misappropriation of trade secrets under TUTSA as well as injunctive relief for using TFS’s customer service lists, contacting customers and employees, utilizing marketing strategies, and making public or private defamatory comments about TFS. After some discovery, TFS amended its complaint in October 2017. In the amended complaint, TFS dropped certain claims and added others, including breach of fiduciary duty. Further, TFS added more facts to support its initial claims, such as providing specific client information as opposed to the more general term “client lists.”

In December 2017, Ms. Mancilla filed a TCPA motion, seeking to dismiss the TUTSA claim, alleging that this claim was filed to intimidate and silence her right to free speech and association. Since there were no valid non-competition agreement, non-disclosure agreement, or non-disparagement agreement, then Ms. Mancilla asserted that this claim’s purpose was to stifle and silence her.

TFS claimed that Ms. Mancilla’s motion should be dismissed since it wasn’t filed with the court in a timely manner. Ms. Mancilla argued that the motion was timely because it was filed within 60 days after the second complaint was filed. Since the second complaint was substantially reformulated with additional, specific facts, then the second complaint triggers the 60-day clock, not the first complaint.

Time Limit was the Reason for the Anti-SLAPP Lawsuit Dismissal

However, the court found that an amended pleading that doesn’t add new parties or claims does not restart the 60-day clock. To do so, the complaint must be amended to reflect new claims of action or new parties to the lawsuit. Here, the amended complaint added detail to the already asserted TUTSA claim, which appeared in the first complaint. The Dallas Court of Appeals held that additional detail to an already asserted complaint does not restart the clock. As a result, Ms. Mancilla’s motion asserting the Anti-SLAPP motion was dismissed. Further, the Dallas Court of Appeals awarded TSL its costs in this case to be paid by Ms. Mancilla and STI.

Read More About Anti-SLAPP Lawsuit Dismissal Protocols

If you have experienced a similar situation and wish to bring an Anti-SLAPP motion, you will benefit from the experience and knowledge of the Anti-SLAPP statute of the attorneys at Kilgore & Kilgore. To read more about the Anti-SLAPP statute, click here Anti-SLAPP Dismissals Just Became a Bit More Difficult. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Recent Ruling Exempts Job Applicants from Discrimination Protection Because of the Language in the ADEA Statute

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Recently, the Seventh Circuit on appeal determined that the discrimination protections for older workers in the ADEA don’t extend to job applicants. The court held that the law applies only to employees. Let’s examine this case further. This decision has already generated some controversy. However, it impacts only the states in the Seventh Circuit, which include Illinois, Indiana, and Wisconsin. Other states can use this decision as guidance, but it’s not controlling law outside of the Seventh Circuit.

More Than Likely the EEOC Will Continue Applying the ADEA to Job Applicants

If a potential employer denies your job application based on age, that employer may be liable. Job applicants should understand that more than likely, the EEOC will continue applying the ADEA to job applicants. Additionally, Congress may pass legislation to fill this language gap. However, until then, this ruling is damaging to individuals applying for work in those states. Whether this restriction on rights extends to other states remains to be seen.

Our Employment Lawyers Can Help You Sort Out Your Discrimination Claim

If you believe you’ve experienced employment discrimination because you’re over 40, you should talk to an employment lawyer at Kilgore & Kilgore. If you have questions about your rights under the ADEA, Title VII of the Civil Rights Act of 1964, or any state law, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website and send it in. We’ll be happy to walk you through the legal dynamics that arise when employment discrimination occurs.

Older Workers Deserve Equal Treatment Under the Law According to the ADEA

In today’s workforce, employees are working longer than in previous generations. Whether it’s because people stay healthier longer or for financial needs, people are working in some capacity well into their 60s and 70s. In fact, 25 percent of the workforce, roughly 41 million people, is made up of Baby Boomers, and 33 percent consists of Gen Xers, topping out at 53 million.

With the increase in older workers in the workplace, we’ve seen a rise in age discrimination reports, with almost double the complaints filed by women, African Americans, Asians, and workers over age 65 years old. In 2017, over 18,000 age discrimination complaints were submitted to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces workplace discrimination laws. Those were the cases that were filed. Many instances of age discrimination go unreported.

Under the ADEA an Employer Must Apply the Same Employment Policies to all Employees

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from intentional discrimination against older workers, meaning employees over the age of 40. Additionally, under the ADEA, an employer can’t engage in different employment practices that impact older workers.

Recently, the Seventh Circuit determined whether the ADEA applies to employees only or if the law encompasses job applicants. In Kleber v. CareFusion Corporation, January 23, 2019, the Seventh Circuit held that the ADEA does not provide legal recourse for rejected external job candidates. Let’s examine this case further.

Older Worker Applies for Job

On March 5, 2014, Mr. Kleber, a 58-year-old job applicant, applied for a senior in-house attorney position at CareFusion Corporation. The job description required job applicants to have three to seven years, and no more than seven years, of relevant legal experience. Kleber applied, knowing he had more than seven years of legal experience. CareFusion hired a 29-year-old job applicant who had between three and seven years of applicable experience. Thus, the company passed over Kleber’s application, not giving him the opportunity to interview.

Older Worker Brings Lawsuit Claiming Disparate Treatment Citing the ADEA

In response to CareFusion’s actions, Kleber filed a lawsuit in district court alleging claims of disparate treatment and disparate impact under the ADEA. Kleber stated that the maximum experience cap for this position was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions. . . . and has a disparate impact on qualified applicants over the age of 40.”

CareFusion requested the dismissal of both allegations. In dismissing the disparate impact claim, the district court stated that the ADEA didn’t extend to job applicants. Kleber voluntarily dismissed the remaining claim for disparate treatment. However, he appealed the court’s decision, challenging the dismissal of the disparate impact claim.

Federal Court Reverses District Court Decision Citing the ADEA

The Seventh Circuit reversed the district court’s ruling in a divided opinion. The Seventh Circuit then granted an en banc (meaning all the judges) review of the case, upholding the district court’s conclusion that the ADEA does not extend to external job applicants, that these protections are available only for employees.

How did the Federal court arrive at this conclusion? Let’s take a deeper dive into the court’s reasoning.
In reviewing Kleber’s disparate impact claim, the court examined the following language from the ADEA:

To limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

Disparate Impact Definition

Illegal employment discrimination is often described as disparate treatment. A disparate treatment claim alleges that an employee or job applicant was treated differently than other employees in similar situations, and the difference involved a protected characteristic such as age. Disparate impact is often referred to as unintentional discrimination. Disparate impact lawsuits claim that an employer’s facially neutral practice had a discriminatory effect. It is a way of proving employment discrimination based on the effect of an employment policy or practice rather than the intent behind it.

ADEA Needs Congressional Action

The judge writing the majority opinion stated that the ADEA differed from Title VII of the Civil Rights Act of 1964, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. In Title VII, Congress amended the law to extend protections to job applicants. Here, regarding the ADEA, Congress has not passed explicit language concerning job applicants. Furthermore, the ADEA differs from Title VII in that that ADEA requires that a company employs at least 20 employees in order to be liable.

One dissenting judge stated that extending the protections of the ADEA would track the U.S. Supreme Court’s application of Title VII, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. You may be interested in reading our other blog post on age discrimination and a recent U. S. Supreme Court decision. Just click here Supreme Court Defines Federal Age Discrimination Law Upon Which Lower Courts Were Split.

Discrimination in the Workplace Occurs in Many Different Types of Situations

Perhaps you suffer from other types of discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.

Court Rules That Vice President Who Was Fired Just Before Earned Sales Commissions Were Due Is Entitled to Payment

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Does part of your compensation come from sales commissions? Do you have a long-term incentive benefit as part of your compensation package? Do you have an employment agreement that outlines the requirements for payment of your sales commissions and incentives? If so, then you should note a recent opinion from the U.S. Court of Appeals for the Fifth Circuit that could make it easier for you to collect your sales commissions and other benefits if you are terminated.

Recent Court Decision Came Down on the Side of the Terminated Employee

The Fifth Circuit case is Sellers v. Minerals Technologies, Inc. and CETCO Energy Services Company, L.L.C. In that case, David Sellers was hired as CETCO’s vice president of business development in January 2010. He signed an employment agreement that provided for a long-term incentive payment of five percent of the net margin of sales made under his supervision.

Employee Was Terminated Without Cause Due to Company Downsize and Employer Claimed That Employee Lost His Incentive Benefit as a Result

Sellers’ employer, CETCO, was purchased by Minerals Technologies around May 2014. Minerals Technologies asked CETCO to downsize. Sellers had allegedly told his employer that he did not intend to stay at the company beyond the end-date of his employment agreement, January 18, 2015. Sellers was eventually terminated without cause as part of a downsize. The federal district court found that Sellers’ date of termination was before the end-date of his employment agreement, December 19, 2014.

Lawsuit Claimed Breach of Contract for Failure to Pay Incentive Under Employment Agreement

In his lawsuit in Texas, Sellers asserted several claims against the defendants, CETCO and Minerals Technologies. One of his claims was for breach of contract for their failure to pay him $428,681.71 for the long-term incentive payment under his employment agreement.

The federal district court ordered CETCO and Minerals Technologies to pay Sellers certain undisputed commissions owed to him. However, the court also granted summary judgment in favor of the defendants, CETCO and Minerals Technologies, finding in part that Sellers was not entitled to the long-term incentive benefits because his employment agreement required that he be employed on January 18, 2015 in order to receive those benefits. The court determined that this requirement was an unmet condition precedent. A condition precedent is “an act or event that must take place before performance of a contractual obligation is due.”

The Federal District Court Decision was Reversed on Appeal

Sellers then appealed the federal district court’s denial of his long-term incentive benefits to the Fifth Circuit. On appeal, the Fifth Circuit examined two key provisions in Sellers’s employment agreement.

Section 3(c) stated:

“If Employee is still employed on January 18, 2015, then after that date but before March 15, 2015, Employee shall receive an amount equal to 5% of the Net Margin of Sales of the New Build Capital Process Equipment business …. Employee will not be eligible for this long-term incentive if he resigns or if he is terminated for cause prior to January 18, 2015.”

Section 11(d) stated:

“Employer may terminate Employee’s employment without cause by giving Employer [sic] thirty (30) days written notice of termination, or in its discretion, pay in lieu of notice. Employer shall be obligated to pay Employee’s base salary to the date such notice is effective, along with any commission and long-term incentive due pursuant to Section 3.”

The Fifth Circuit agreed with the federal district court that Section 3(c) of Sellers’ employment agreement unambiguously created a condition precedent that required Sellers to be employed on January 18, 2015 in order to receive the long-term incentive benefits. However, the Fifth Circuit determined that the condition precedent was satisfied, or alternatively, excused under the facts of the case.

The summary judgment evidence showed that Sellers received a payment for one month’s salary, $14,205, on January 15, 2015. In accordance with Section 11(d), this payment was for an additional thirty days of wages. The Fifth Circuit concluded that the effective date of Sellers’s termination was thirty days after January 15, 2015, or February 14, 2015. Thus, the Fifth Circuit determined that the condition precedent requiring Sellers to be employed on January 18, 2015, in order to receive his long-term incentive benefits, had been satisfied. According to the Fifth Circuit, the federal district court erred in finding that the condition precedent had not been met.

Condition Precedent Fulfilled or Excused According to the Fifth Circuit

The Fifth Circuit found that the condition precedent was fulfilled or excused under the facts of the case. A condition precedent can be considered fulfilled “if one party prevents another from performing a condition precedent or renders its fulfillment impossible, then the condition may be considered fulfilled.” The defendants had terminated Sellers in December 2014 and thus “unilaterally prevented fulfillment of the condition at issue and cannot rely on nonfulfillment to deny” the long-term incentive benefits to Sellers due under his employment agreement.

Thus, the Fifth Circuit reversed the federal district court’s grant of summary judgment in favor of the defendants on the issue of the payment of the long-term incentive benefits due to Sellers. The case was remanded by the Fifth Circuit to the federal district court for the purpose of determining the amount of long-term incentive benefits owed to Sellers and entering judgment in that amount.

Understand the Provisions in your Employment Contract that Define the Payment of Sales Commissions and Incentive Payments

You should understand what your employment agreement says and doesn’t say. If you have an employment agreement that provides for sales commissions or other incentives which have been earned but not paid, contact us. We help employees enforce their employment agreements. We also help employees get the commissions and incentives they deserve. If you have any questions about your employment agreement, click here to find the contact us form on this website. Fill it out and send it in to get the conversation started. Kilgore & Kilgore offers a free review of the facts of your case. Just click here Contact Kilgore & Kilgore.

U. S Supreme Court Further Defines Federal Age Discrimination Law Upon Which Lower Courts Were Split

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You may be too young to experience age discrimination yet, but just wait, because it may happen to you. Or, perhaps you have engaged in discrimination against someone because of his or her age, without even recognizing it. Thousands, if not millions, of working Americans have felt the cold shoulder of age discrimination from their employers or during job searches when they were passed over for a position in favor of a younger, less expensive candidate. At first, the employee or job searcher may not recognize the rebuff as age discrimination because the action is cloaked by different reasons so the person making the decision about the older worker doesn’t hurt his or her feelings. But make no mistake, age discrimination exists in the U. S.

Age Discrimination is Illegal in the U.S.

Under both and federal and Texas state law, age discrimination is illegal. Employees who are 40 years of age or older are protected against discrimination based on their age. Are you 40 or older? Were you replaced by a significantly younger worker? Have you heard your supervisor make comments about your age or tell age-related jokes to your co-workers? If you think you have experienced age discrimination, then you should contact Kilgore & Kilgore, because our employment law attorneys hold employers liable for discrimination as defined by Texas and federal law. To learn more about Kilgore & Kilgore’s employment discrimination law practice, click here Employment Discrimination.

Age Discrimination in Employment Act

In 1967, Congress passed the Age Discrimination in Employment Act, commonly referred to as ADEA, to protect workers from age discrimination. Originally, the ADEA applied only to private employers, leaving state and local government workers unprotected. Only private employers with 20 or more employees are covered under the ADEA.

However, in 1974, Congress amended the ADEA to add protection for state and local government workers. Neither private sector nor state and local government workers under the age of 40 are protected by the ADEA or its Texas counterpart in Chapter 21 of the Texas Labor Code.

U. S. Supreme Court Decides and Defines the ADEA Age Discrimination Law

In its first opinion of the October 2018 term, the U.S. Supreme Court decided a case under the ADEA. In Mount Lemmon Fire District v. Guido, the U.S. Supreme Court held that state and local governments are covered by the ADEA regardless of the number of employees they have. The decision was 8-0. Justice Kavanaugh did not participate. Justice Ginsburg wrote the unanimous opinion for the Court.

Age Discrimination Lawsuits Against Employers are Simpler for Government Employees

As a result of this decision by the U.S. Supreme Court, the whole process of bringing an age discrimination case against an employer has been made easier for government employees. This is because employees who work for federal or state agencies no longer must show that at least 20 employees work there in order to proceed with an age discrimination claim. For other types of discrimination, only 15 employees are necessary for bringing a claim. It is only in the ADEA that the 20-person requirement is contained.

Older Firefighters Laid Off in Arizona Set off an Age Discrimination Lawsuit

In Guido, the Mount Lemmon Fire District located outside of Tucson, Arizona, laid off its two oldest full-time firefighters. They were 46 and 54 years of age. These firefighters sued the Fire District for age discrimination under the ADEA. The relevant section of the ADEA, 29 U.S.C. § 630(b), states:

The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees …. The term also means (1) any agent of such person, and (2) a State or political subdivision of a State…

Fire District Sought Dismissal of Firefighters’ Claim

Relying on the above section of the ADEA and some other lower court cases, the Fire District sought dismissal of the firefighters’ lawsuit in the Federal District Court in Arizona. They argued that the ADEA did not apply to the Fire District because it had less than 20 employees. The Federal District Court in Arizona agreed with the Fire District and granted summary judgment for the Fire District. So, the case was brought on appeal to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit held that the 20- employee requirement did not apply to employees of the federal government, that it applied only to private employers with 20 or more employees. The Fire District appealed to the U.S. Supreme Court which also found that there was no 20-employee requirement for federal government employees. The case has been sent back to the district court, where litigation will proceed.

Definition of Number of Employees Requirement Established by the U. S. Supreme Court

The U.S. Supreme Court had to determine whether the ADEA’s “twenty or more employees” requirement for a private employer also applied to state and local government employers. The Court determined that the phrase “also means” in the ADEA added new categories of employees who were protected by the ADEA. The ordinary meaning of “also means” is additive rather than clarifying, according to the Opinion written by Justice Ginsburg.

Thus, the U. S. Supreme Court held that the 20-employee minimum does not apply to every category of employer identified in the ADEA. The numerosity requirement does not apply to state and local government employers. The Court affirmed the judgment of the Ninth Circuit and concluded that state and local governments are employers subject to the ADEA regardless of the number of employees they may have. Thus, the two firefighters would be able to assert their age discrimination claims against the Mount Lemmon Fire District regardless of its small number of employees.

Discrimination in the Workplace Occurs in Many Different Types of Situations

Perhaps you suffer from other types of discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.