Chapter § 4-14 § 21.051. Discrimination by Employer

JurisdictionUnited States

4-14 § 21.051. Discrimination by Employer

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or,

(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

An excellent case that summarizes various legal issues under the TCHRA is as follows.

Donaldson v. Tex. Dep't of Aging and Disability Servs., 495 S.W.3d 421 (Tex. App.—Houston [14th Dist.] 2016) (summarizing Texas law on comparator evidence, pretext, and testimony from co-workers).

4-14:1 Commentary

4-14:1.1 Was There a True Adverse Employment Action?

A threshold issue, too often overlooked, is whether an employee suffered an adverse employment action. Even if an employment action is motivated by an unlawful factor, there is no violation of the TCHRA unless the employee is subjected to harmful action. Otherwise, all discriminatory acts would create a claim. And they do not. Counsel should therefore analyze whether there is a true adverse employment action. (Note that the definition of adverse employment action to establish a prima facie case under protected characteristics is different than the definition for purposes of a retaliation claim.)

Spees v. James Marine, Inc., 617 F.3d 380 (6th Cir. 2010) (exhaustive discussion of "adverse employment action"; by 2-1 vote, court expands boundaries of definition of same, holding that an employee states a claim if she felt "unchallenged" in a position to which she was transferred, allegedly because of her pregnancy).

An excellent case from the Eastern District of Texas provides an excellent primer on the law under the Texas Labor Code.

Adams v. McKinney Indep. Sch. Dist., No. 4:14CV762, 2016 U.S. Dist. LEXIS 10296 (E.D. Tex. Jan 28, 2016) (plaintiff claimed race discrimination; defendant's motion for dismissal pursuant Rule 12(b)(6) is granted; court holds that evaluations, write-ups, and alleged poor performance of the plaintiff do not constitute adverse employment actions sufficient to support a discrimination claim; while court agrees that plaintiff need not allege a prima facie case to survive the granting of a Rule 12(b)(6) motion, court holds that she must nonetheless allege facts so the court can draw a reasonable inference that she suffered an adverse employment action under the TCHRA; court acknowledges the City of Waco case discussed infra, but states that plaintiff alleged no facts to fall within its purview).
Harris Cty. Hosp. Dist. v. Parker, 484 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (summary judgment granted on employer's motion for summary judgment when plaintiff claimed race discrimination but alleged no adverse employment action; thus, while employer may have borne racial animus, there is no race claim even if the plaintiff alleges that he was disciplined, was reprimanded, received poor performance reviews, or was the object of hostility from other employees; in such an instance, the employee may be able to state a hostile environment claim based on a protected characteristic but not a disparate treatment claim).

4-14:1.2 Definition of Adverse Employment Expanded

An important 2014 case...

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