If a female employee is assaulted and harassed, can she sue for assault or for sexual discrimination or both? According to the Waffle House, Inc. v. Wiliams, 313 S.W.3d 796 (Tex. 2010) decision, she would have to sue under the Texas Commission for Human Rights Act for discrimination. Limiting the female employee to sex discrimination when her damages might be far worse than allowed under the TCHRA severely limits her. I wrote about that decision here. I also wrote about the pending appeal in the case of B.C. v. Steak ‘n Shake, No. 15-0404 (Tex. 2017). As the B.C. decision illustrates, what happens when the sex discrimination is just one single violent act? In that situation, the female employee could not make out a case for sex discrimination. Her case would be dismissed. A single act of harassment by a co-worker will almost never suffice to establish a claim for sexual harassment by a co-worker.

Fortunately, the Texas Supreme Court recognized that conundrum. In perhaps the only employee friendly decision from the Texas Supreme Court since before 2000, it found that the basis of B.C.’s claim is assault, not harassment. The assault was not tied to any promotion or threat of termination. There was nothing about the assault that suggests her supervisor had the intent to interfere with her job performance. In short, said the court, nothing about this situation indicated that the employer might be liable for tolerating a hostile work environment. That is an important distinction. That means the employee does not need to show the employer knew or should have known the supervisor was capable of sexual violence. The employer can still avoid liability for other reasons. But, it cannot avoid liability by showing it took steps to prevent sex harassment.

The Supreme Court found that the Legislature in passing the TCHRA, intended to create a scheme to combat workplace harassment, not abrogate common law assault. But, the court did not really reconcile its decision in Steak ‘n Shake with Waffle House. In Waffle House, it said flatly that common law tort claims like negligent supervision were incorporated by the Legislature into the TCHRA. See Waffle House decision here. The two opinions can probably not be reconciled. As  the dissent to Waffle House points out, common law claims are not pre-empted unless clearly so stated in the statute. The TCHRA does not specifically pre-empt any common law tort claim. Even so, we can all agree that assault claims are not preempted by the TCHRA. See the B.C. v.Steak ‘n Shake decision here.

The life experiences a judge brings to the table are important. Pres. Trump’s nomination of Neil Gorsuch illustrates that maxim. Judge Gorsuch, prior to assuming his chair at the Tenth Circuit Court of Appeals represented big business, often opposing attempts to seek class action certification on behalf of workers. His decision in Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), is an unnecessarily harsh decision for American workers. Professor Hwang requested a six month leave of absence for recovery from her cancer treatment. She had already received one six month leave and needed another six months off. Kansas State said no, relying on an inflexible, supposedly “no-fault” leave policy.The judge speaks in broad terms that a six month leave could never work. Six months is so long that such a worker is simply not qualified for the job, said the conservative jurist. “It’s difficult to conceive how an employee’s absence for six months . . .  could be consistent with discharging the essential functions of most any job . . . ” Hwang, at 1162. I have written about so-called fixed leave policies here. That assertion is poorly worded by any judge, when precision is called for.

Yes, it is unusual for any worker to miss work for six months and remain employed. Yet, it happens frequently for a wide variety of reasons at many employers. The critical question is whether a particular job function is a true job function. Is it a true job function that the worker return to work within a certain amount of time? See Holly v. Clarion Industries, LLC, 492 F.3d 1247 (11th Cir. 2007) (Applying a multi factor test to determine whether a claimed job function of arriving timely each day is truly required by the employer); Barber v. Nabors Drilling U.S.A., Inc. 130 F. 3d 702, 707 (5th Cir. 1997) (Rehabilitation Act) (whether a job function is truly required is fact intensive); Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (court upholds preliminary injunction requiring four-week trial return to part-time work for employee recovering from posttraumatic stress disorder); Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010) (although regular attendance may be an essential function of many jobs, plaintiff’s ability to meet employer’s “extremely lenient” attendance policy indicated that he was qualified). The key question is what happens if a person does not arrive timely, said the court in Holly. What is missing from Gorsuch’s analysis is the question, what would happen to the university if  Prof. Hwang was gone another six months?

Judge Gorsuch arrives at the critical question after spending some time disregarding the value of EEOC guidance and explaining why the denial of an accommodation actually benefits persons with disabilities. Hwang, at 1164. He then rejects Hwang’s suggestions that some faculty members receive sabbaticals of a year or longer. The reasoning is that if non-disabled persons are allowed extended leaves it would be discriminatory to not allow her an extended leave. The judge dismisses those examples as not sufficiently detailed. Hwang, at 1164. Are they tenured faculty, he asks? Are those professors on year-to-year contracts? But, those distinctions do not make a difference. The question is what would happen to the university employer if Prof. Hwang missed an additional six months. Would the business of the employer come to screeching halt? Would it offer some loss of income? What would happen? That the employer might allow extended leave for a year-to-year professor and not for a full tenured faculty member does not address that question. It does appear the judge was trying to reach a specific result.

The Judge could have simply said that under the facts of this case, Ms. Hwang has not shown that non-disabled workers are being treated differently. or, he could have said under the facts of this case, it appears the employer could not function if one professor took extended leave and that, therefore, the claimed job function of no extended leave is appropriate. Instead, he spoke much more broadly, suggesting a worker could never or almost never show that an employer can do without one worker for six months. He based that over broad assertion on nothing more than his personal knowledge of the working world.

Judge Gorsuch famously says a good judge is one who disagrees from time to time with his own decisions. He is right. A good judge follows precedent or the statute regardless of outcome. It just does not appear that he did so in his Hwang decision.

In another case, TransAm Trucking v. Admin. Review Board, Dept. of Labor, 833 F.3d 1206 (10th Cir. 2016), Judge Grouch dissented from a decision about a truck driver. The truck driver was stranded when his brakes froze in Illinois. The temperature was below zero at about 11 p.m. He asked his company what he should do. The tank was nearly out gas and he could not locate the fuel station required by his employer. The company told him to wait for the repair person. Then he noticed his heater was not functioning. Wishing a couple of hours, he noticed his was slurred. He fell asleep and woke up realizing after a few hours he could not feel his torso or his feet. He called the company again. The dispatcher told him to “hang in there.” After about 30 minutes of “hanging in there,” he unhitched the trailer. His supervisor told him to stay with the trailer. The boss kept telling the driver to turn on the heater and the driver kept telling his supervisor the heater was not working. The supervisor told him to drag the trailer with frozen brakes with him or stay with the trailer. That was his choice. The driver said he would go find some help and leave the trailer behind. TransAm fired him and he sued. The majority decision found he was fired because he wanted to comply with the Surface Transportation Assistance Act’s requirement to operate the truck safely.

Judge Gorsuch dissented. He admitted the employer’s decision was perhaps not wise or kind. (Gee, you think??) He pointed out that the statute protects someone who refuses to operate his vehicle out of safety concerns. But, in this situation, the driver was told to leave the trailer with the frozen brakes by the side of the road. He does admit after some protracted discussion about the meaning of “operate” that the statute is designed to protect the health and safety of the driver. But, the judge insists the statute applies to persons who “refuse to operate,” not to persons who actually operate the truck.

The judge’s focus on not operating the truck is curious. The last direction from his boss was to drive the truck with the broken trailer or stay with the trailer. His direction included both operating or not operating the truck. Yet, the judge focused on the direction to stay with the trailer by the side of the road – which meant not operating the truck. That focus does suggest the judge wanted to reach a certain result. He ignored the possibility that the driver was asked to operate the truck in an unsafe manner.

Sen. Franken asked Judge Gorsuch about this dissent. He mentioned that the judge described the temperature as “cold.” In fact, the temperature was 14 degrees below zero. The description suggests the judge was trying to reach a desired result.

The judge indicated the truck driver should have remained with the trailer in subzero conditions trying to to tell his boss the heater does not work. Simply to protect the cargo in the trailer. As a lawyer, I am gratified any judge is so committed to the precise wording of a statute. But, if you are a truck driver stuck out in the freezing temperatures at 11 at night, and your heater does not work, you do not really want to hear about “strict construction.” Your needs are more basic. And, I think, the rest of us do not want a judge who does not appreciate that distinction.

Sen. Franken says the dissent advocated an “absurd” result, that the driver should have asked his life to protect the cargo. Yes, that is absurd. See CNN news report.

An internal investigation by the UT system found that UTSA President Ricardo Romo more likely than not engaged in sexual harassment with three female employees. Mr. Romo would engage in lengthy hugs with the women. Pres. Romo described these hugs as “abrazos.” Maybe. But, someone as smart as Dr. Romo knows not to throw around one’s cultural norms at work. The work place is different. I expect he tried this story and it just did not fly with the UT system. That is why he is being forced out early.

One female employee said Mr. Romo told her she looked beautiful, he had taken many pictures of her and then asked for a hug. Another said he made one female worker’s life miserable with his frequent, lengthy hugs.

William McRaven, the UT chancellor, received two complaints about Pres. Romo within two weeks of each other in January. An investigation followed. If this was Mr. Romo’s best explanation, the abrazo explanation, it is not surprising he was fired early. See San Antonio Express News report.

The San Antonio Fourth Court of Appeals recognized same sex harassment in certain limited situations.  See my prior post discussing the decision in Clark v. Alamo Heights Independent School District, No. 04-14-00746 (Tex.App. San Antonio 10/21/2015) here. The seminal case for same sex harassment is the U.S. Supreme Court decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In the Oncale case, the court made it clear that there case was really about gender stereotyping, not harassment based on sexual orientation.

The Texas Supreme Court has accepted an appeal regarding the Clark case. We will see if it threads the needle of harassment based on sex stereotypes, instead of harassment based on sexual orientation. The Clark case is based on a plea to jurisdiction. So, we assume the Texas Supreme Court will focus on the essential elements of such a case.

The decision in Pena-Rodriguez v. Colorado did not receive much attention. But, it should have. In that case, a Mexican immigrant was found guilty of assaulting two teenage girls. After the verdict, a member of the jury reported that another member of the jury said some racist things about Mr. Pena-Rodriguez. The jury was all white. One juror, a former police officer, said he’s guilty “because he’s Mexican and Mexican men take what they want.” The same juror made several anti-Mexican comments. He dismissed the credibility of an alibi witness because the witness was an illegal immigrant. These statements are clearly racist. If these sentiments had been known, they would have kept the former police officer off the jury. But, because the statement did not come to light until after the verdict, it could not be used under the law in Colorado and in most states.

Most states have a version of the “no impeachment” rule, that provides a jury cannot be impeached after the verdict for things said during deliberations. There are just a few limited exceptions to the rule, such as when a juror considers something s/he should not have during deliberations.

The no impeachment rule dates back to common law England. But, as Justice Kagan pointed out, this is as good as “smoking gun” evidence gets. This statement clearly shows racist sentiment. By a 5-3 vote, the U.S. Supreme Court ruled that where prejudice is involved, the “no impeachment” rule must give way. The Sixth Amendment, which guarantees the right to a trial by jury, requires the courts to consider evidence of racial bias.

As the dissent pointed out, this ruling will invite scrutiny of jurors everywhere regarding what was said in the formerly sacred room, the jury room. It is common practice for lawyers to meet with jurors after a trial to discuss how they arrived at their verdict. If evidence of racial bias is fair game, then surely other forms of bias will also become fair game. And, yes, that does open a Pandora’s box. But, the alternative is jurors acting out of racist prejudice. And, that cannot be allowed. See Above the Law blog post here. The time may come when we move away from the jury system. England uses juries in only rare cases, now. See the decision in Pena-Rodriguez v. Colorado, No. 15-6-6 (3/6/2017) here.

Some of us are more likely to contract certain illnesses due to our genes. But, would we want our employer to know about those predisposed illnesses? Well, a bill proposed in Congress would allow your employer to ask that question. HR 1313 passed a vote in committee and is now before the whole House. It would allow your employer to require you to take a genetics test to determine if you were predisposed to certain illnesses. All 22 Republicans voted for the bill. All 17 Democrats voted against it. Observers expect it will be attached to the current new health care bill now working its way through Congress.

The bill, known as the Preserving Employee Wellness Programs Act, would apply to employer health care wellness plans. If the employee refuses to take the DNA test, then the costs of his/her health care would rise 30%. See Time news report. Under current law, known as Obamacare, an employer could require an employee to pay more for insurance if s/he refuses to participate in an employer’s wellness plan. The idea is to improve the health of workers and thereby reduce health care costs for the employer. Wellness plans include more than just health insurance. But, there is little evidence that wellness programs actually improve the health of a workforce. And, there appears to be no direct correlation between genetic predisposition and a person’s health. But, that does not appear to stop House Republicans from advancing the proposal.

The 2008 Genetic Information Nondiscrimination Act prevents employers from discrimination against a person for a genetic predisposition toward certain illness. The GINA bars an employer from even asking workers to undergo a DNA test. So, I presume the current bill, if passed, would or could overrule the GINA.

Big Brother is out there, and he may be your employer. It is bad enough to be fired because you develop a serious illness. But, to be fired because you might develop a serious illness is more than most people can accept.

I wrote about Ricardo Romo previously here. He was placed on leave from his position as president of the University of Texas at San Antonio. When he was first placed on leave, he pledged to clear his name. Now, he has decided to retire. He does not explain the entire situation but suggests he was the subject of a sexual harassment complaint because he engaged in an abrazo at work with female employees. His chief of staff, Sonia Martinez was also placed on leave at the same time. See San Antonio Express News report.

I am not Hispanic, but my experience with the abrazo is: 1) it is voluntary. The participants are not required to engage in an abrazo. Persons wishing to show mutual affection can choose to simply shake hands. And, 2) the abrazo is basically a hug. Hugs come in degrees of closeness.

Mr. Romo’s story sounds fishy to me. No sexual harassment claim is based simply on hugs. Words are required to make a case. Hugs are capable of subjective interpretation. Hugs alone are not enough. And, when the alleged perpetrator is a president of a public university, the quality of proof must be stronger than normal. The case against this former president surely involved more than simple hugs.

Among the many forces unleashed in the past year or so is anti-Semitism. Bomb threats against Jewish Community Centers, the place where many people, Jewish and otherwise, find rumba lessons, tennis lessons and basketball. More than 100 JCC’s across the country have been the targets of bomb threats. Two Jewish cemeteries have been vandalized. Two Indians were shot in a bar in Kansas City, because the shooter thought they were Iranians. See CNN news report.

The FBI is investigating. They do not yet know who is making these threats. But, we can assume whoever it is, they do not dance, play tennis or otherwise engage in their community.

A county prosecutor showed up at the local school to listen to a young student read aloud an Old Testament story in his native language. The state had recently passed a law against speaking a language other than English in school. Nebraska passed the Siman Act in 1919 which forbade instruction in a foreign tongue. The County D.A. saw the act and brought criminal charges against the teacher for allowing the use of a language in school other than English. The teacher, Robert Meyer, was tried and found guilty. But, he refused to pay the fine. He appealed. The Nebraska Supreme Court ruled that the Siman Act, like education itself, was part of the state’s powers and was lawful. This Act was directed at a security threat. The country had been at war with Germany, and speaking German was deemed a threat to national security. The teacher was charged in 1923. The boy who read Old Testament story was named Raymond Parpart and he was speaking German in class, in violation of the Siman Act.

Mr. Meyer appealed to the U.S. Supreme Court. In a 7-2 decision, the Supreme Court disagreed with the Nebraska Supreme Court. The federal court derided the law as an affront not only to the rights of teachers, but also to parents who wished their children to be educated as they saw fit. The court noted that the Siman Act prohibited current foreign tongues, such as Spanish, Italian and German, but not ancient languages, like Greek, Hebrew and Latin. The Act, said the court, was proscribing educational principles. Justice James C. McReynolds also noted the irrational, disproportionate treatment of German immigrants. “Mere knowledge of the German language cannot reasonably be regarded as harmful.” The court was saying that knowledge of how to speak German in itself does not make a person sympathetic to the Kaiser. Just as today, mere knowledge of how to speak Arabic does not in itself make a person a terrorist. Just as today, knowledge of how to speak Spanish does not make a person a Mexican drug smuggler.

The court noted that the protections of the U.S. Constitution extend to persons who speak English, as well as to persons who speak a foreign tongue. The court allowed that it might be better for persons to speak English in school and learn ordinary speech. But, said the court, this cannot be enforced by methods that conflict with the Constitution. A valid goal cannot be achieved by prohibited means.

Yes, the more things change, the more they stay the same. See the decision in Meyer v. Nebraska, 262 US 390 (1923) here.

In the world of jobs, anything is possible. In the employment world, we deal with human behavior in all its manifestations. We see a crazy case in Fisher v. Lufkin Industries, Inc., No. 15-40428 (5th Cir. 2/10/2017). William Fisher had worked for Lufkin Industries off and on for some 20 years when he was fussed at by his boss, Steve Saxton. “Boy, I don’t know why every time come over here [to Fisher’s work area] its a hassle!” His voice was raised. Mr. Fisher is African-American. Fisher reported the use of the term “boy” to HR and said it was racial. HR tasked another manager to look into the matter. That manager found that the use of the term “boy” was used as exclamation, not in a derogatory way.

[I am not sure what that means, but it could mean Mr. Saxton referred that way to white and black workers.]

Mr. Saxton’s manager. David Jinkins, was also asked to look into the matter. About a month later, a co-worker of Mr. Fisher, David Rhoden, approached Manager Jinkins and said he did not like hearing that Fisher had complained about the use of the term “boy.” Mr. Rhoden said Fisher had said he would get Mr. Saxton fired. During this conversation, Mr. Rhoden mentioned that for a long time, Mr. Fisher had been selling DVD’s out of his lunch box and some of the CD’s were pornographic. Rhodes would later testify that it was Mr. Jinkins who asked about the CD’s.

Manager Jinkins asked Rhoden to buy a CD from Fisher, so they could use it as proof. Rhoden resisted. Jenkins said, “You scratch my back, I’ll scratch yours.” Mr. Rhoden bought a CD a few days later. It turned out to be blank. Mr. Jinkins told Rhoden to try again. This time, the CD was pornographic, said Mr. Jinkins. An investigation ensued. The company said Mr. Fisher violated a company rule in selling CD’s on company property. Mr. Fisher did not deny the accusation, nor did he agree with it. The company officials went to Mr. Fisher’s car to search it. As the search began, Mr. Fisher said he received a call from his wife and he had to go. One official said he heard the phone ring. Two other officials present said they did not hear any phone ring. The car was never searched. Mr. Fisher was fired a day later.

Mr. Fisher filed suit. In his lawsuit, he said he had been subjected to reprisal for opposing discriminatory conduct.

The lower court granted summary judgment. The court said the investigation was retaliatory. Many employees sold things at work. Many employees possessed pornographic material at work. There was no specific rule prohibiting selling things at work. But, Mr. Fisher lied to company investigators and did not cooperate in the search of his car, said the district court. Therefore, said the court, the firing was justified. It granted summary judgment apparently seeing the termination by HR, which meant the HR official was not motivated by retaliation.

On appeal, the Fifth Circuit was perplexed. It noted that the investigation was retaliatory. The lower court found it was retaliatory and facts supported that finding. But, under the cat’s paw theory, a supervisor can act on the retaliatory motive of a subordinate manager. Manager Jinkins appeared to have a retaliatory motive. His investigation and “sting” operation reflected an unusual interest in Mr. Fisher. The investigation would not have occurred but for Rhoden’s and Jinkin’s retaliatory motive. Mr. Fisher’s lack of cooperation with a retaliatory motivated investigation was “inextricably” tied to the retaliatory motive of Jinkins and Rhoden. The actions of Mr. Rhoden and Mr. Fisher were proximate causes of Fisher’s termination. So, the Fifth Circuit panel reversed the grant of summary judgment. See decision here.