San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was to avoid placing too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  I am sure this employee limitation was intended as early tort reform.  But, it also means some employers can discriminate based on factors most of us would not support. 

If Title VII does not apply, then the "Reconstruction statutes," laws passed during Reconstruction in the 1870's, might apply.  42 USC Sec. 1981 and 1983 apply regardless of the number of employees. These statutes protect racial and ethnic minorities from discrimination in the formation of contracts. Employment can be a type of contract.  If you have a question, you should discuss your situation with an employment lawyer. 

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The Older Workers' Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

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 Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission.  But, the CRD is only located in Austin, Texas.  So, by far, most cases are filed with the EEOC.  Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency.  The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act.  The TCHRA generally tracks Title VII. 

Both statutes prohibit discrimination based on sex, race, national origin, and religion.  The Americans with Disabilities Act prohibits discrimination based on disability.  The Age Discrimination in Employment Act prohibits discrimination based on age.  The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act.  And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit. 

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 Recently, I wrote about a study showing that employers are losing more discrimination cases this past year.  This was a study published by Manpower, a human resources firm.  Yet, a separate study by two Cornell professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse.  These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs.  Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court.  In 2001, employment cases accounted for 10% of all federal lawsuits.  In 2006, that number dropped to 6%.  I am sure that drop is due to the ever increasing use of summary judgment in employment cases.  

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  "Reversal rate" refers to those times when the lower court finds in favor of one party or the other.  If you are a defendant, you have a 30% chance of reversing the district court.  As a plaintiff, you have only a 10% chance of obtaining a reversal.  Pretrial disposition refers primarily to summary judgment and motions to dismiss.  So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed.  While, the plaintiff has only a 10% chance at reversing the adverse decision.  

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear.  Defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  Thus, the authors point out, the federal system heavily favors the defendant (employer).  

As the authors explain, this result is counter-intuitive.  Discrimination cases by definition rely on evidence of intent and private conversations.  One would expect reversal of a jury decision to be rare.   Or, one would at least expect that reversal of a jury decision to be about the same for both parties.  Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury.  Such cases ought to be virtually immune from appellate review.  The appellate judges were not present at trial to observe witness testimony.  The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims.  That "attitudinal" bias would certainly comport with my experience with federal appellate judges.  They are, on the whole, remarkably skeptical of discrimination claims.  

But, so are federal district court trial judges.  They are on the whole just as skeptical of discrimination claims.  The authors note that federal trial level judges are skeptical toward discrimination claimants.  Discrimination plaintiffs are among the least successful sorts of claimants in federal court.  

The data from 1998 to 2006 shows the following success rates for plaintiffs: 

ADA - 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data.  This Cornell study published in the Harvard Law & Policy Review drew from federal numbers.  Federal district clerks keep painstaking detail regarding each lawsuit filed.  So, the Cornell study is based on solid data.  The Manpower study relies on data collected by Jury Verdict Research.  My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources.  The information is still relevant when compared to prior years.  But, JVR's data is probably not as complete as federal systemic data.   So, the Cornell study is scientific, while the JVR study probably is not.  It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.  

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