Chapter 6-3 Employment Discrimination

• Jurisdiction: United States

6-3 Employment Discrimination

6-3:1 Overview

A claim for Employment Discrimination under the Texas Commission on Human Rights Act (TCHRA) is analogous to a lawsuit brought under federal anti-discrimination laws. The relationship is so close that Texas courts may use federal case law interpreting federal law as authority.⁷⁰ A claim for Employment Discrimination is purely statutory in respect to its elements, damages, remedies, and defenses.

6-3:1.1 Related Causes of Action

Americans with Disabilities Act (ADA) Claims,⁷¹ Wrongful Discharge: Breach of Employment Agreement; Wrongful Discharge: Refusal to Perform an Illegal Act, Suit for Retaliatory Treatment: Filing a Workers' Compensation Claim; Texas Whistle-blower Act.⁷²

MUST READ CASES & STATUTES

Chapter 21 Texas Labor Code; McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Nichols v. Loral Vought Sys. Corp., 81 F.3d 38 (5th Cir. 1996); Gold v. Exxon Corp., 960 S.W.2d 378 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

6-3:2 Elements

(1) The plaintiff must establish a prima facie case of discrimination.⁷³

• The burden of establishing a prima facie case is easy to meet.⁷⁴

The plaintiff establishes a prima case by showing the following:

(a) The plaintiff is a member of a protected class;⁷⁵

• The following is an exclusive list of protected classes under the TCHRA:

• Race;
• Color;
• Disability;
• Religion;
• Sex;
• National origin; or
• Age.⁷⁶

• Age may only be asserted if the plaintiff was at least 40 years old.⁷⁷

(b) The plaintiff was qualified for his employment position.⁷⁸

• Generally, the inquiry is whether the plaintiff could do the work the employment position required, not whether he could do it well.⁷⁹

(c) The employer made an adverse employment decision regarding the plaintiff.⁸⁰

• Adverse employment decisions include:

• Failing or refusing to hire an individual;
• Discharging an individual;
• Discriminating in any other manner against an individual in connection with:

• Compensation; or
• The terms, conditions, or privileges of employment;

• Limiting, segregating or classifying 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.⁸¹

(d) Employer treated plaintiff less favorably than similarly qualified persons.⁸²

• A plaintiff must provide specific reasons that establish his disparate treatment.⁸³
• An employee's subjective opinion that he was treated less favorably than similarly qualified persons is no evidence.⁸⁴

(2) If the employer articulates a legitimate reason for its adverse employment decision regarding the plaintiff, the plaintiff's prima facie case is rebutted, and the burden shifts back to the plaintiff to establish the employer's reason was a pretext for unlawful discrimination.⁸⁵

• The plaintiff must establish that the plaintiff's status as a protected class member was a "motivating factor" for the adverse employment decision.⁸⁶
• "Motivating factor" means that the plaintiff's status as a protected class member was one of the reasons for the adverse employment decision.⁸⁷

6-3:3 Damages and Remedies

6-3:3.1 Compensatory Damages

Compensatory damages are available.⁸⁸

Compensatory damages include:

• Future pecuniary loss;
• Emotional pain;
• Suffering, inconvenience;
• Mental anguish;
• Loss of enjoyment of life; and
• Other nonpecuniary losses.⁸⁹

Compensatory damages might also include:

• Past pecuniary loss.⁹⁰

Attorneys' fees.⁹¹

Compensatory damages does not include:

• Back pay;
• Interest on back pay; or
• Any relief granted under Section 21.258(b).⁹²

6-3:3.2 Prejudgment Interest

Prejudgment interest is appropriate.⁹³

6-3:3.3 Equitable Relief

The following equitable remedies are available:

• Enjoining the defendant from an unlawful employment practice;
• Hiring or reinstating the employee with or without back pay;
• Upgrading an employee with or without pay;
• Admitting to or restoring union membership;
• Admitting to or participating in a guidance program, apprenticeship, or on-the-job training or other training or retraining program, using objective job-related criteria in admitting an individual to a program;
• Reporting on the manner of compliance with the terms of a final order issued under Chapter 21 of the Texas Labor Code; and
• Paying court costs.⁹⁴

Any back pay awarded must be from a period no more than two years prior to the date the plaintiff filed his complaint with the Texas Workforce Commission.⁹⁵

6-3:3.4 Punitive Damages

Punitive damages are available if the defendant acted with:

• Malice; or
• Reckless indifference to the plaintiff's rights.⁹⁶

Punitive damages are not available against a governmental entity.⁹⁷

Chapter 21 of the Texas Labor Code does not define "governmental entity⁹⁸

6-3:3.5 Damage Cap

The sum of the amount of compensatory damages awarded under Section 21.2585 for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other nonpecuniary losses and the amount of punitive damages awarded may not exceed, for each complainant:

• $50,000 in the case of a respondent that has fewer than 101 employees;
• $100,000 in the case of a respondent that has more than 100 and fewer than 201 employees;
• $200,000 in the case of a respondent that has more than 200 and fewer than 501 employees; and
• $300,000 in the case of a respondent that has more than 500 employees.⁹⁹

The following measurements of damages are not to be capped:

• Past pecuniary losses;¹⁰⁰
• Back pay;¹⁰¹
• Interest on back pay;¹⁰² or
• Other equitable relief granted under Section 21.258(b).¹⁰³

6-3:4 Defenses

6-3:4.1 Statute of Limitations

There are two cumulative statutes of limitation.¹⁰⁴

• A plaintiff must file a complaint with the Texas Workforce Commission Civil Rights Division within 180 days of when the unlawful employment practice occurred.¹⁰⁵
• If a plaintiff opts to file a lawsuit, he must do so within two years of filing his complaint with the Commission.¹⁰⁶

The unlawful employment practice "occurs" when the employer discriminates and informs the employee of the employment decision.¹⁰⁷

• It does not matter when the employee feels the consequences of the discrimination.¹⁰⁸

6-3:4.2 Failure to Exhaust Administrative Remedies

A plaintiff's failure to exhaust his administrative remedies under Chapter 21 of the Texas Labor Code is a jurisdictional defect.¹⁰⁹

6-3:4.3 Waiver

A plaintiff may only litigate those unlawful employment practices which are:

• Raised in the plaintiff's administrative complaint; or
• Like or related to an unlawful employment practice which was raised in the plaintiff's administrative complaint.¹¹⁰

6-3:4.4 Business Necessity

An employer does not commit an unlawful employment practice by engaging in a practice that has a discriminatory effect...