In employment lawsuits, the nub of the matter is often the alleged pretext. The employer argues the personnel decisions as completely normal and free of discriminatory bias. The plaintiff argues the opposite, that the employer’s decision does not withstand scrutiny. In Texas Tech Univ. Health Sciences Center v. Flores, No. 22-0940 (Tex. Dec. 31, 2024), the higher court addressed that very issue, pretext. Loretta Flores worked for Texas Tech University for over 20 years, working her way up the ladder from temporary medical secretary. She filed her first EEOC charge in 2015 when she was passed over for promotion by then new Pres. Richard Lange.

Flores I

That first charge resulted in the decision in Texas Tech Univ. Health Science Center v. Flores, 612 S.W. 2d 299 (Tex. 2020) – known as Flores I. In that first decision, the Texas Supreme Court disregarded evidence that Pres. Lange’s alleged rationale for choosing a younger person was sketchy. The higher court overturned a denial of Defendant’s Plea to the Jurisdiction. A plea to jurisdiction essentially argues that the plaintiff lacks sufficient evidence to go to a jury. When in doubt, the courts are supposed to deny such a plea and let the jury decide. But, in the first Flores decision, the Texas Supreme Court weighed the evidence and found it lacking. Anytime a court has to weigh evidence, there is sufficient question that ought to warrant a jury trial.

Direct Evidence

The same result obtains in the second Flores case. In the second case, Ms. Flores was again passed over for promotion for a much younger employee. This time, Pres. Lange even flat asked Ms. Flores about her age during his interview. He then told her she did not have to answer the question. Raising the issue of age suggests ageist concerns. To many judges, that question itself would amount to direct evidence of discriminatory bias.

Ms. Flores did not answer the question. Yet, the Texas Supreme Court excused Lange’s question, since he told her she did not have to answer. …. Yes, the Texas Supreme Court now allows discrimination, so long as the supervisor claims he does not actually want a response.

The problem with the court’s reasoning is that Flores’ appeal is based on a plea to jurisdiction. When the facts are close, the court is supposed to let the jury decide the case. But, the activist Texas Supreme Court prefers to weigh evidence. There was other evidence of pretext. Pres. Lange articulated reasons for his preferred candidate based on skills not really mentioned in the job description. But, the Supreme Court pointed to an alleged incident several years prior in which Flores had problems with a budget. Justice Lehrmann said this was evidence of poor performance. Yet, this alleged poor performance was never the subject of formal counseling or a performance evaluation. Again, the evidence is close enough that a jury should decide.

The court even noted the guidance in Reeves v. Sanderson Plumbing Prods., 530 U.S. 147, 149 (2000), that based on the failure of the employer’s supposed reason, a jury may infer that unlawful discrimination was the true reason. An employer is presumed to know the reason why it makes a decision. So, if there are possible issues of pretext, there ought to be a jury trial to resolve those issues. Despite all this, the court weighed the evidence and found it wanting. See the decision in Texas Tech Univ. Health Sciences Center v. Flores here.

I first wrote about attacks on judges in 2011 and 2012. Newt Gingrich, the former Speaker of the U.S. House, even joined in on attacks on Judge Fred Biery in San Antonio. That was in 2011 and 2012. See those posts here. Those attacks have continued. Candidate and later Pres. Trump has now raised attacks on judges to an art form. Doing so is dangerous. There is a thin reed of civility that protects state and federal judges. Chief Justice Roberts has now issued his own warning against threats and intimidation toward the judiciary.

Chief Justice Roberts tells us that threats against judges have risen 100 fold in the last 10 years. Law enforcement officers around the country must now devote significant resources to protecting judges and investigating those threats – resources which would be better used to catch violent criminals. Too, accusing judges of political bias undermines their credibility, notes the Justice.

Politics

True, but during the Trump administration, all Federal judges were picked from the Federalist Society. Politics was injected into their nomination from the get-go. I suppose Justice Roberts prefers to avoid that elephant in the room.

The Chief Justice also notes the increasing public comments by politicians that judicial opinions should be ignored. The Justice’s comments are remarkable since he authored the decision that gave sitting Presidents virtually complete immunity for official acts. Pres. Trump will certainly feel emboldened to disregard which ever laws and edicts he disfavors.

Still, before 2011, threats against judges were relatively rare. The public discourse has changed dramatically. Making very public accusations of political bias used to be rare. See the ABA Bar Journal report for more information regarding Chief Justice Roberts’ warning.

The decision in Bostock v. Clayton County Georgia, 590 U.S. 644 (2020) was rendered in 2020. In that decision, the U.S. Supreme Court resolved a long-standing issue: does Title VII apply to homosexual based claims? Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex. Does “sex” include same sex? Yes, said the court in Bostock. I previously talked about that decision in Bostock here.

Texas Workforce Commission, Civil Rights Division rightly noted that that decision added “gender identity” to its list of claims which are protected under the state version of Title VII. TWC added “gender identity” to its online list of protected claims. Texas state law has always followed Federal law regarding discrimination. Since, the Texas version of Title VII is based on ….. Title VII.

But, Republican state Rep. Brian Harrison does not know this area of law. Heck, he is not even a lawyer. Rep. Harrison complained that TWC had adopted some new policy. Swiftly, Harrison’s complaint reached Gov. Abbott, who is a lawyer. Within days, the lawful listing of “gender identity” was removed. Harrison claimed a “victory” for Texans. Doubtless, TWC will still accept claims based on same sex discrimination. But, the “same sex” category has been removed from its website. Uninformed persons may believe they will not be protected and, therefore, not file a complaint with TWC.

Harrison may have won. But, his uninformed, uneducated complaint was a defeat for LGBT persons. The one Texas court of appeals to address the issue agreed that the decision in Bostock did indeed provid valid guidance for Texas courts. See Tarrant County College District v Sims, 621 S.W.3d 323 (Tex.App. Dallas 2021). TWC tried to follow the law. But, Rep. Harrison, with his economics degree, disagreed. See San Antonio Express-News report for more information.

Why do folks avoid jury duty? One reason is some, probably most people are just busy. Some people can multi-task. But, one juror learned the hard way that multi-tasking while sitting on a jury has consequences. Sallie Sue Smith was told she could not work on crossword puzzles while she should be listening and watching trial. Fine, she put the puzzle down. But, later during jury deliberations, she resumed working on her cross word puzzles.

The trial concerned a man who killed the mother of his child at Home Depot in Pensacola, Florida. The jury deliberations were acrimonious. There was shouting. Sallie said she can shout, too. Ms. Smith was in the minority of members. After five hours, the judge declared a mistrial, in part because one juror was working on crossword puzzles and presumably, not paying close attention.

But, Ms. Smith said she focuses better when she is doing her puzzles. See ABA Bar Journal report here.

I previously wrote about the potential effect of Project 2025 on the private sector workforce here. But, what about the Federal workforce? Well, looking at the book’s discussion of the Federal workforce, we enter the bizarro world of right-wing politics.

Right off the bat, the book claims that today, Federal workers are not held accountable. Project 2025, p. 71. For those of us who regularly represent Federal workers, this statement is farcical. If the workers are not held accountable, there would be no need for lawyers like myself. Even if we allow for some hyperbole on the part of the book’s authors, yes, Federal workers are held accountable. It is a myth that civil service workers cannot be fired. I see in the Federal workforce the same disciplinary measures I see among private sector employees.

Fully Successful

The authors are concerned that one study found that 99% of workers are rated fully successful or above. And, only 0.3% are rated minimally successful. The authors cite a 2013 report regarding permanent Federal employees. Project 2025, p. 73, n. 15. But, that conclusion says little, so far as it goes. That same study shows that three-fourths of GS-13 to GS-15 were rated in the top two categories. That is not a surprising result. There are just not many of those high level managers at the GS-13, GS-15 level – outside of Washington, D.C. In my 30 years of representing Federal employees far from the beltway, I have never represented anyone above GS-13. The ratings decrease some as you go down the GS rating ladder. See the study the authors used here.

This is just not a crazy result. In the military, we had a similar result that as you got higher, the performance ratings were higher. Yet, we did just fine weeding out the bad apples. In many private sector jobs, they do no performance evaluations. None. The Federal sector goes well beyond the private sector in both training of its managers and in employing a viable rating system. The Heritage Foundation is digging deep to find evidence of a lack of accountability.

Disparate Impact Lawsuits

Regarding Federal employees, the authors again attack disparate impact lawsuits – as their counter-parts did regarding private sector employees. Project 2025, p. 72, 583. Disparate impact lawsuits are exceedingly rare. Disparate impact lawsuits are lawsuits that claim a policy or rule has “impacted” large groups of protected people. Such as: a rule that would prohibit males from working as Flight Attendants. That is a rule that existed once and which was clearly based on gender. Those sorts of lawsuits are very rare even among the private sector workforce. Such lawsuits are even more rare among Federal employees. Since, unlike their private sector counter-parts, Federal workforce managers receive regular, frequent training on how to avoid managerial mistakes and possible acts of discrimination.

“Careerists“

The Project 2025 book gets into the bizarro world of politics when it warns against “careerists” who “lean heavily to the Left.” The book cites no source for this over-the-top claim. The authors then claim they need new job descriptions that avoid veteran preferences and other preference categories. Project 2025, p. 80. That is just an odd statement. Veterans actually hew to the political right if anything. Simply based on my personal experience in the military for 28 years and having lived in San Antonio, Texas, a Federal workforce dominated city, Federal workers come in all flavors. In the military, we worked with Federal workers wherever we had to reserve a firing range or a training area.

Veteran Preferences

Federal workers cannot be categorized one way or the other. I would like to see a serious study, but in my experience, most are conservative – simply because so many are veterans or are family members of veterans. Indeed, if you want to hire a new civil service employee at Ft. Cavazaos, Texas or Ft. Moore, Georgia, you would be hard pressed to hire someone who was not a veteran or related to a veteran. This is just a strange claim to make – and one for which the authors cite no authority or study.

And, of course, as a veteran, I agree with veteran preferences. Veterans make wonderful employees. And, for some vets, returning from war, job searching is a monumental task. They have earned some extra respect.

There has been much talk about Project 2025, a book published by the Heritage Foundation. Many of the authors were major players in the last Trump administration. So, we can expect the contents of the almost 900 page book to fuel many policy proposals in a new Trump administration, if there is one. The book can be downloaded from this site here.

EEO-1 Form

How would Project 2025 affect American workers? The book has a lengthy section on suggested changes to the Department of Labor. The book starts by calling on the EEOC to stop collecting the EEO-1 form. This form is required of large employers. It requires employers to set forth the racial make-up of their workforce and address attempts to increase minority hiring. It is a harmless form, which has become very routine. The Project 2025 book says the EEO-1 form “could” lead to racial quotas. It “crudely” categorizes people into racial groups. Those are just silly comments. The EEO-1 has been around since the 1970’s or longer. What power it might hold ought to have been revealed long before now.

The book calls for the EEOC to “disclaim” its “regulatory pretensions.” I can hardly make sense of that prescription. The EEOC issues regulations to help explain and enforce the various anti-discrimination statutes. There is no pretension involved. Statutes never address every situation. It is up to regulations to fill in some of those gaps.

The book makes an odd comment that “woke” goals have entered the private sector and American labor. At this point, the book clearly wanders around into politics. Title VII of the Civil Rights Act of 1964 was once a “woke” goal. But, today, in 2024, how do we define “woke”? The book makes no attempt to define the word. Neither does it offer specific proposals based on perceived “woke” goals which have slipped unseen into our work force.

PTO

The book does make an interesting proposal, that Department of Labor and other agencies allow Paid Time Off (PTO), also known as “compensatory time.” PTO is used often in state and city agencies. PTO means a person who works more than 40 hours in one week would be credited with an hour of time which s/he can use as unpaid leave. PTO is offered in lieu if overtime pay. The book wants private sector employees to have the option of choosing PTO or overtime. PTO violates the FLSA requirement for overtime pay. But, if the FLSA could be amended, many workers would appreciate access to PTO. Some labor unions have negotiated PTO policies.

Independent Contractor

Perhaps, the biggest change would be a return to the definition of independent contractor (IC) implemented by the Trump administration. All the current definitions of IC look at several factors. I wrote about the different tests for IC here. Most of those tests look at factors such as:

  • Who supervises the work
  • Who trains the workers
  • Who sets the hours for the work
  • Who provides the tools
  • Who hires the work
  • How integral to the overall business is the work being performed
  • And so on

There are anywhere from 7 to 20 factors, depending on which test we use. But, the Trump Department of Labor boiled the test down to two factors: 1) the nature and degree of control of the work, and 2) the worker’s opportunity for profit and loss. The Trump definition made it much easier to classify gig workers as Independent Contractors. It is simply unrealistic to expect a definition for IC to rely on only two factors. Our labor force is much to complicated for such a simplistic test.

Federal judges are judges for life. Pauline Newman was appointed to the Federal Circuit Court of Appeals in 1984. The court hears patent claims and customs issues. In 2023, responding to complaints by staff that Judge Newman was being abusive, the judicial council for the Federal Circuit suspended Judge Newman, saying she had shown signs of cognitive decline.

The council placed Judge Newman on a one year suspension and started to investigate her abilities. It asked her to submit to a medical exam. She refused. Dr. Aaron Filler, an attorney who has appeared in front of Judge Newman, offered to conduct an exam of Judge Newman at no cost. Dr. Filler is also a neurosurgeon.

Dr. Filler found Judge Newman to be a “super ager.” She demonstrates a mental acuity of someone 20 years younger, said the doctor. Dr. Filler measured the blood flow to her brain and he interviewed her. Dr. Filler said her “rapid efficient responses” to difficult questions indicated a very high level of cognitive ability.” He discussed the reports of abusive behavior. He said most of those reports occurred subsequent to the initiation of the investigation and could have been due to stress.

The doctor concluded:

“She engages normally and fluidly in interaction and conversation without any apparent diminishment that might be associated with age in the 10th decade as to other individuals. In this regard she presents as a ‘super-ager’ in that she does not demonstrate effects of age on cognition or demeanor comparable to many others at this age.”

See ABA Bar Journal report here.

I wrote about Rudy Giuliani’s quixotic attempts to overturn the 2020 election results here and here. I mentioned not a few times how strange it was to see any lawyer, but especially a lawyer with Giuliani’s stature, risk his law license based on such flimsy cases. Yet, he did. And, now he has been disbarred by the Washington D.C. Bar Association. Typically, once a lawyer loses his license in one jurisdiction, other states will soon follow suit. It just boggles the mind how so many lawyers were willing to throw the dice with their law licenses for such little apparent gain.

The legal world is one of the few areas in which its major actor’s verbal assurance will generally be accepted at face value. A lawyer who makes some ambiguous claim in court will generally be accorded credibility. So, it makes sense that lawyers who abuse that privilege ought to lose that privilege. Rudy Giuliani ought to know that. See AP News report here for more information.

So, now Infowars will be auctioned off. Alex Jones opposed the move in a Houston bankruptcy court. But, theJudge found that was the way to best satisfy the judgments against the conspiracy theorist. See CBS news report here. I previously wrote about Alex Jones and the lawsuits against him here and here.

It’s a strange thing when a major personality will literally risk all he owns, just so he can spread harmful lies about innocent families.

There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.