Federal courts in Texas have been busy this year, issuing many significant decisions impacting employment litigation that employees should be cognizant of, as many of these decisions are precedent-setting and impact an employee’s ability to establish a prima facie case.

The EEOC provides an intake form that assists employees in determining coverage of their claims. The Fifth Circuit made clear it will not consider these intake forms as an employee's formal charge against his or her employer.

In Ernst v. Methodist Hospital System, 2021 U.S. App. LEXIS 17015 (5th Cir. 2021) (unpublished), an employee’s EEOC intake questionnaire did not satisfy Title VII’s charge-filing requirements because it was not verified as required by EEOC regulations and the employer was not provided with notice of the questionnaire or the claims therein. This is an important distinction employees should be aware of when pursuing an EEOC claim against an employer, as failing to timely file an EEOC charge may bar an employee's ability to pursue litigation.

​One element of an age discrimination claim is that the plaintiff must show he or she was replaced by a substantially younger employee. Many courts require that the replacement is not themselves within the protected group of employees 40 years or older. 

The court in Fenley v. Texas Plumbing Supply Company, Inc., No. 14-19-00851, 2021 WL 1881273 (Tex. App.—Houston [14th Dist.] May 11, 2021) (mem. op.), held direct evidence can support a prima facie showing of age discrimination even where the plaintiff is replaced by someone 40 or older. 

The court further ruled on another important conflict among courts reviewing age discrimination claims--whether the "same actor inference" absolutely precludes the possibility of bias. Many courts also apply the “same actor inference” to find that if the person wo hired the plaintiff is the same person who fired the plaintiff, a factfinder should infer that person was not biased. ​The court held that the same actor inference can be overcome by direct evidence of bias. In this case, there was direct evidence that a supervisor told the 70-year-old plaintiff “you are too old for this job.” 

To be actionable, sexual harassment must be "sufficiently severe or pervasive" to alter the terms and conditions of the victim's employment. The plaintiff in Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex. App.—Texarkana June 3, 2021) (mem. op.) sued her employer for sexual harassment after finding her supervisor had placed a camera under her desk aimed at her seat. 

The court held that the plaintiff could establish “severe or pervasive” harassment despite her being unaware of the camera for several months and despite the employer immediately removing it and firing the supervisor upon discovering the camera. Thus, a single event alone can be severe or pervasive.

The court further held that an employer must prove both elements of the Ellerth affirmative defense, which requires the employer show: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

The Texas Supreme Court in Aerotek, Inc. v. Boyd, __ S.W.3d __, 2021 WL 2172538 (Tex. May 28, 2021), made it easier for employers to establish assent to employee documents and agreements by an employee’s electronic signature. 

The court relied upon a provision of the Texas Uniform Electronics Transactions Act that provides “[a]n electronic record or electronic signature is attributable to a person [by] showing. . .the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” 

Standing alone, the plaintiff employees’ sworn denials that the electronic signatures at issue here with respect to an arbitration agreement was insufficient to create an issue of fact.

In a disappointing blow to disability discrimination plaintiffs, the court in Dillard v. SNC-Lavalin Engineers & Constructors Inc., __ S.W.3 __, 2021 WL 2149219 (Tex. App.—Houston [1st Dist.] 2021, held that a plaintiff’s allegation that he had diabetes and took medication for diabetes, standing alone, did not create an issue of fact whether he was disabled because he failed to show the diabetes caused him to be “substantially limited.” 

Despite the ADA requiring that the substantial limitation requirement shall be construed broadly in favor of expansive coverage and diabetes being virtually always found to impose a substantial limitation under federal regulations, the court held a determination of whether an impairment is substantially limiting still requires an individualized assessment. 

​Thus, a plaintiff must also show that diabetes substantially limits the plaintiff’s endocrine function or another major life activity. Diabetes is not a “per se” disability.

As this sample of recent decisions by federal courts in Texas illustrates, the required proof and procedural steps of employment litigation is ever-evolving and changing. Employees should always consult an experienced employment attorney before taking any steps that could jeopardize their claims.

​In her first memo as General Counsel, published August 12, 2021, Jennifer A. Abruzzo outlined a new set of ambitious priorities that suggest many upcoming changes to current Board law, many of which would reverse Trump-era rulings largely pro-employer in nature. This blog will discuss some of the most significant initiatives addressed in section 2 of that memo.

The first initiative addressed involved cases involving the applicability of three Board decisions related to employee status:

1. Velox Express, Inc., 368 NLRB No. 61 (2017), where the Board refused to find a violation based on an employer misclassifying drivers as independent contractors.
2. Brevard Achievement Center, Inc., 342 NLRB 982 (2004), where the Board declined to extend the Act’s coverage to individuals with disabilities on the grounds that they were not employees within the meaning of Section 2(3) of the Act when working in a rehabilitative settin.
3. Toering Electric Co., 351 NLRB 225 (2007), where the Board required a showing that an individual is someone genuinely interested in seeking to establish an employment relationship to prove entitlement to Section 2(3) status as an employee under the Act.

Abruzzo also addressed cases involving an employer’s duty to recognize and/or bargain with a union, specifically citing the following cases:

1. The George Washington University Hospital, 370 NLRB No. 118 (2021), where the Board found surface bargaining lawful.
2. Dubuque Packing Co., 303 NLRB 386 (1981), where the Board announced a new test in a refusal to furnish information related to a relocation whereby the burden is on the General Counsel to establish that the employer’s decision involved a relocation of unit work unaccompanied by a basic change in the nature of the employer’s operation.
3. Shaw’s Supermarkets, Inc., 350 NLRB 585 (2007), where the Board permitted mid-term withdrawals of recognition where they occur after the third year of a contract of longer duration. Abruzzo explicitly noted the possibility of overruling this decision.
4. Joy Silk Mills, Inc., 85 NLRB 1263 (1949), where the Board held an employer could refuse to bargain with a union that claimed a majority of authorization cards only if the employer had a “good faith doubt” about the union’s claimed majority status.

The next initiative encompassed cases related to employees’ strike and picket rights:

1. Hot Shoppes, 146 NLRB 802 (1964), where the Board addressed an allegation that an employer’s permanent replacement of economic strikers had an unlawful motive
2. Wal-Mart Stores, 368 NLRB No. 24 (2019), where the Board broadly defined an intermittent strike
3. Preferred Building Services, Inc., 366 NLRB No. 159 (2018), where the Board found employees picketed with a secondary object and lost the Act’s protection when they protested sexual harassment and unsafe working conditions
4. Service Electric Co., 281 NLRB 633 (1986), where the Board allowed an employer to unilaterally set terms and conditions of employment for replacements even where those terms are superior to those that had been paid to striking unit employees

In a slightly broader topic, Abruzzo then turned to cases involving Section 7 rights more generally:

1. Tri Cast, 274 NLRB 377 (1985), where the Board approved employer statements that employee access to management will be limited if employees opt for union representation
2. Crown Bolt, 343 NLRB 776 (2004), where the Board presumed dissemination in cases involving an employer’s threat of plant closure where there is little evidence of dissemination to other employees
3. Cordua Restaurants, Inc., 368 NLRB No. 43 (2019), where the Board found, among other things, that an employer does not violate the Act by promulgating a mandatory arbitration agreement in response to employees engaging in collective action 

​In total, Abruzzo identified more than 40 Trump-era decisions that should be reconsidered, modified, or reversed, and further expressed an interest in reviewing many other areas of labor law. This is welcome news for labor organizations that have grown accustomed to the Trump board’s pro-employer agenda, restricting their ability to organize in the workplace and undermining workers’ bargaining rights.
With the recent appointments of Gwynne Wilcox and David Prouty, both union lawyers, and this new General Counsel set on returning the rights the prior administrations stripped from unions across the country, employees and unions can look forward to much needed changes.

 ​At the time of this blog’s publication, at least 60% of the U.S. population has received at least one dose of the COVID-19 vaccine and 51% of the population has been fully vaccinated. Despite these promising figures, on July 27, 2021, the CDC released updated guidance on the need for urgently increasing vaccination coverage and a recommendation for even fully vaccinated people to wear masks in public indoor spaces.

​Vaccination requirements are gaining in prevalence in various settings. More than 200 colleges and universities are requiring vaccination of at least some students or employees ahead of the fall semester, and many companies have already announced vaccine requirements for at least some of their employees. 

​Under federal law, an employer may require all of its onsite employees to get vaccinated against the coronavirus, subject to two exceptions:
​

1. An employee’s religious belief.
2. An employee’s medical condition(s).

Note: Employers may also be subject to collective bargaining agreements that require them to negotiate with represented employees prior to implementing a unilateral change in vaccination requirements.

Under Title VII of the Civil Rights Act of 1964, employers with 15 or more employees cannot discriminate against employees based on, in relevant part, their religion. To receive Title VII protection, an employee must demonstrate that they have a sincerely held religious belief. They must also show that not receiving a vaccine would not impose an undue hardship on the employer. 

An employee with a qualifying medical condition recognized by the Americans with Disabilities Act of 1990 may also be excepted from an employer’s vaccine requirement if that medical condition will put the employee’s health at risk if they receive the vaccination. Again, however, the exemption must not place an undue hardship on the employer. 

9 states have enacted 11 laws with prohibitions on vaccine mandates, with many prohibiting state and local government officials from requiring vaccinations. Private schools and employers in those states can thus still enact vaccine mandates.

​Many companies have already announced a coronavirus vaccination mandate of at least some of its employees. Delta Air Lines, DoorDash, Facebook, Ford, Google, Lyft, Microsoft, Netflix, Twitter, Uber, Walgreens, The Walt Disney Company, and Walmart are all among those companies who are requiring at least some of its employees to demonstrate proof of vaccination as a condition of their employment.

On April 1, 2021, Houston Methodist Hospital announced a policy requiring employees be vaccinated against the coronavirus by June 7, 2021. The named plaintiff and 116 other employees sued to block the requirement and the terminations of those who refused to comply with the mandate, arguing the employer unlawfully forced its employees to be injected or be fired.

The Southern District of Texas, in its order dismissing the lawsuit, observed that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. Of course, receiving a COVID-19 vaccination is not an illegal act and it carries no criminal penalties.

The court likewise dismissed the argument that the injection requirement violates public policy, as Texas does not recognize this exception to at-will employment. In concluding remarks, District Judge Lynn N. Hughes succinctly noted: “Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”

Employers may elect to require vaccinations in their workplace, but they must comply with various state and federal laws. With the ever-changing guidance from the CDC and the varying approaches of state governments with respect to vaccinations, employees would be wise to seek legal counsel for any questions about an employer’s right to require them to receive a vaccine. 

Our firm has recently blogged about Senate Bill 45 and its potential impact on sexual harassment claims in Texas. This blog addresses a collateral issue that employees should consider when filing their sexual harassment lawsuits.

After September 1, 2021, supervisors, managers, human resources professionals, other employees, and third parties may be named individually as defendants in an employee’s sexual harassment complaint and held personally liable for damages. This is welcome news for employees wishing to hold individuals, and not just their employer, liable for unlawful conduct.

However, employees should be aware this could potentially foreclose an employer’s ability to remove a sexual harassment lawsuit to federal court (often viewed as more favorable for employers than state courts) given that the parties would no longer have diversity of jurisdiction. If a non-diverse supervisor, human resources professional, or other employee (a Texas resident) is added as a defendant to the lawsuit, the employer cannot then remove to federal court based on the diversity of the parties, as complete diversity of all parties is required. ​

Employers may therefore resort to a process known as “snap removal” to remove the case to federal court on diversity grounds before the defendant is served. Snap removal takes advantage of the plain language of the “forum defendant rule” in the removal statute, which states a suit that is “otherwise removable solely on the basis of [diversity of citizenship] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” 28 U.S.C. Section 1441(b)(2). Thus, the technique allows an employer to remove a case to federal court on diversity grounds after the suit is filed in state court, but before the forum defendant is served.

Going forward, the best practice for employees concerned about snap removal when joining multiple defendants may be to sue the resident defendant (so diversity does not entitle an employer to remove to federal court) and then amend to include the non-resident employer after service on the resident has been effected, thus eliminating the option entirely.
 
However, not every employee may be concerned with removal to federal court, and indeed some employees may actually prefer to litigate in federal court depending on the unique circumstances of their case. Choice of venue can play a pivotal role in an employee’s lawsuit, so these issues should all be discussed with a competent employment attorney intimately familiar with the advantages and disadvantages of bringing a particular suit to state or federal court.