The Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010), decision was issued a few years ago. In that decision, the Texas Supreme Court decided that a lawsuit based on a tort claim of sexual assault was actually subsumed by the Texas Commission on Human Rights Act. I wrote about that decision here. That meant a claim for sexual assault was turned into one for sexual harassment under the TCHRA. Claims under the TCHRA are limited to $300,000 for emotional suffering type a damages and for punitive damages. That $3000,000 works for sexual harassment claims. But, that limit does not work well for sexual assault claims that involve severe trauma for females who have been abused or raped.

The TCHRA is the Texas version of Title VII. Texas is still one of the very few states to reach that result where sexual assault is somehow subsumed into sexual harassment. Like Title VII, a person complaining of a TCHRA type complaint would have to file her complaint with the EEOC. But, if she filed her suit as a personal injury or tort, then she could go straight to district court. She could skip the EEOC. There would be no caps on her damages, if she won her lawsuit.

A personal injury sexual harassment type lawsuit was pretty rare, even before the Waffle House decision. But, it allowed some women who might have missed the TCHRA deadline to still file suit. A TCHRA type complaint must be filed within 6 months (more or less depending on circumstances) of the incident. But, like many victims, some women are just too overwhelmed with losing her job or suffering some adverse action, or even more likely, they just have a hard time finding an employment law lawyer. So, some women would miss that six month deadline. In such cases, the personal injury sexual harassment was seen as a possible avenue, if a bit risky. The deadline for any personal injury claim in Texas is two years. So, a woman could miss the EEOC deadline and still have a legal option, if her case had personal injury type facts.

But, after Waffle House, that option ended. Now, the Texas Supreme Court re-visits that issue. In B.C. v. Steak ‘n Shake, No. 15-0404, the woman, identified as “B.C.” to protect her identity, was assaulted by a co-worker in the bathroom of a Steak ‘n Shake. As the dissent in Waffle House pointed out, what happens when the assault is just that, an assault and nothing more? In B.C., the attacker simply grabbed her and tried to force her to kiss him and touch his genitals. It was a one-time attack. It would be very hard to argue that was sexual harassment within the definition of the TCHRA. Every definition of sexual harassment requires overt acts over an extended period of time. Yet, the Waffle House decision did not allow for that variation in facts. It issued a broad rule that made little sense.

B.C. v. Steak ‘n Shake is now on appeal to the Texas Supreme Court. See Dallas Morning News report. Oral arguments are set for Nov. 7, 2016.

The Waffle House decision made a silly distinction, that a sexual incident at work would always amount to sexual harassment. There are similarities between the two causes of action, but within the wide variety of the human experience, there are many variations. A blanket rule makes no sense. And, that is why so few states have reached that sort of result. In the lower court, the now Attorney General Ken Paxton defended Steak ‘N Shake. Somehow, that is not surprising.

Bias is often not clear. Once, we considered a biased person anyone who wore a white, linen sheets. Now, we know better. Bias is usually not clear. Donald Trump clearly has some bias against women. But, that does not necessarily mean he treats all women the same. CBS News reached out to 84 women who used to work for Mr. Trump or one of his businesses. 43 did not respond, at all. Another 19 women said they would not respond on or off the record, positive or negative. Of the remaining 19 women, some had positive experiences, some had negative experiences. One woman mentioned that when Mr. Trump came to the building, they had to make sure they had a blonde woman, an attractive blonde woman at the front desk. Several women noted that promotion opportunities for women were limited at any Trump business, while a few said the glass ceiling was more for women who were not deemed attractive.

One woman tried to report sexual harassment by a male co-worker. But, she was told essentially that “boys will be boys.” She left her job soon afterward.

Many women had positive experiences. And, Donald Trump did start hiring some women early in the 1970’s when women still had trouble securing good jobs. A few women indicated his coarse comments about women in the Access Hollywood video was not surprising. See CBS News report here.

Like many discrimination lawsuits, Mr. Trump’s bias against women is not always clear.

It benefits a business to hire persons with disabilities. As David Hendricks, columnist with the San Antonio Express News points out, persons with disabilities are loyal workers. Mr. Hendricks recounts the time when Marriott Global Reservations hired a person with blindness. The hiring manager was nervous simply about interviewing a person who was blind. But, once hired, the new reservation taker did very well. He would use the tab key to move through the on-screen reservation form. He could not see to use the mouse, as other workers did. Using the tab was faster. Soon, all the reservation takers were using the tab key.

H-E-B has hired persons with disabilities for years. They have found disabled workers to be much more loyal than more traditional workers. They have found persons with disabilities to work well in certain jobs. A new regulation, Mr. Hendricks adds, requires federal contractors and sub-contractors to employ at least 7% persons with disabilities. The contractors can establish plans to work toward those goals. Texas Workforce Solutions, a state agency, will help Texas employers reach those goals.

Typically, it costs the company nothing or very little to accommodate most persons with disabilities. The rest of the time, it costs less than $500. It just makes sense to hire persons with disabilities. Whatever his/her impairment, the disabled worker still must be able to perform the essential functions of the job. See column by Mr. Hendricks.

One often overlooked aspect of Americans with Disabilities Act is that this statute also protects persons who have an association or relationship with a person who has a disability. See 42 U.S.C. §12112(b)(4). 20 C.F.R. §1630.8 defines the association as relationships based on family, business, social or other sorts of relationships.  The statute and regulation appear to recognize that persons with disabilities often have informal support groups. As one client with blindness once explained to me, he left his home for a job in a distant state. In that distant state, his colleagues at work became in effect his support network. He could not really survive without an informal  support group.

If a person suffers discrimination because he or she assists someone with a disability, how does that person show discrimination? There is no specific test for associational discrimination under the ADA. So, rightly or wrongly, the courts have adopted a test based on certain situations. The seminal case is Larimer v. IBM Corp., 370 F.3d 698 (7th Cir. 2004), cert. den. 543 U.S. 984 (2004). Judge Posner is the author. The court found three types of situations that fall within the protections of Sec. 12112(b)(4):

  • Expense – such as when the spouse of an employee will cause additional expense to the employer. This might happen when a spouse will cause health insurance premiums to rise, so the employee is fired.
  • Disability by association – the court focused on possible genetic pre-dispostion to certain impairments, or an employee with contagious impairment like HIV
  • Distraction – such as when an employee is distracted at work due to the impairment of a family member

The problem with this list is that courts inevitably see the list as exclusive. The Larimer court in no way suggested this list is a final list. In fact, the court set forth this list simply to help explain why Mr. Larimer would not be protected by the ADA. Mr. Larimer, said the court, lacked evidence showing the employer was concerned about the health care costs of his daughter, or that her condition was somehow communicable to others. Therefore, he was not entitled to coverage.

Judge Posner pointed out a “quirk” in the statute. By the literal wording of the statute, a person who alleges s/he was fired because s/he was associated with a person with a disability must show that s/he was a “qualified individual.” That is, the wording requires the family member to have a disability, just as the person s/he is assisting must also have a disability. That would make no sense. The purpose of the provision is to protect persons providing assistance, not those who have impairments themselves. So, Judge Posner interpreted this provision to mean the assisting person must be qualified for the position from which s/he has been fired. See the Larimer decision here.

The prima face elements for an associational discrimination claim would include that the person: 1) was qualified for the job, 2) was subjected to adverse personnel action, 3) was known by the employer at the time to have a relative or associate with a disability, and 4) suffered an adverse action in circumstances that suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision. See, Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016); Hilburn v. Murata Electronics N. America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).

The caselaw is not perfect. But, the statute recognizes a fact of life in the world of persons with disabilities: many persons involved in their lives are not relatives. They often have an informal network of supporters who make their working lives possible.

Faith Gonzales worked at a Bill Miller barbecue restaurant. As any San Antonian would know, Bill Miller’s is a fast-food version of barbecue and is a local institution. She complained about discriminatory conduct and was fired in 2008. She filed her charge with the EEOC. The matter did not go to trial until January, 2013. After a two day trial, the Bexar County Court-at-law jury awarded $30,000 in lost pay and emotional suffering damages. Most juries award relatively small amounts for lost pay and emotional suffering type damages.

As often happens with civil rights lawsuits, the larger money is in the attorney’s fees. Ms. Gonzales’ lawyers submitted an attorney fee request for $65,000. They submitted the request to the judge after the trial, not to the jury and not during trial. The employer, Bill Miller, argued the fee request should have been made to the jury. The judge disagreed and awarded $60,000 in attorney’s fees.

On appeal, the Fourth Court of Appeals in San Antonio agreed with the defendant. It said attorney’s fees must be decided by a jury, even though at least one Texas Supreme Court case, El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012), indicates that judges should decide attorney fees. See the decision in Gonzales v. Bill Miller  here. The Fourth Court noted that two other Texas courts of appeals have found that attorney’s fees should be determined by the court, not by a jury. The Fourth Court noted that the reasonableness of an attorney fee is a fact issue. The court also noted correctly that El Apple I did not state clearly that a court should determine attorney’s fees. It did refer generally describe the lower court’s role as reviewing attorney fee requests for reasonableness. El Apple I, pp. 763-64. It would be impossible for a jury to perform that role. Nevertheless, the Fourth Court added, the Supreme Court in El Apple I was not presented with the question of who should decide the question of attorney’s fees. That is true. The Texas Supreme Court did not address who specifically should determine a jury fee award.

So, the appellate court returned the case to Bexar County Court-at-Law No. 7 for trial simply on the issue of attorney’s fees. The jury then awarded some $127,000 in attorney’s fees. The Defendant may be wishing it had not sought this appeal, after all.

In federal court, sanctions are a real possibility. A state court can also award sanctions if a lawsuit is found to be frivolous. But, state court judges are more reticent about awarding sanctions than federal judges. In federal court, sanctions rarely occur, but they do occur. The law firm representing the plaintiffs in Elfoulki v. Brannons Sandwich Shop, No. 14-cv-5964 (S.D.N.Y. 6/22/16),  found that to be true. They filed the lawsuit alleging failure to pay minimum wage at a small sandwich shop. They filed suit on behalf of two named plaintiffs and sought collective action certification. The court approved the collective action. But, no other employees opted in to the lawsuit. So, the collective action was later decertified.

The employer then asked for sanctions. The employer did not actually gross more than $500,000 in sales and had not grossed more than $159,000 in sales since it opened about ten months before the lawsuit. Grossing more than $500,000 in one of the way a business qualifies for coverage under the FLSA. The employees would still be covered by the Fair Labor Standards Act if they could show the employees were directly involved in interstate commerce. But, the plaintiffs did not make such an allegation. In accordance with federal rules, the Defendant submitted a notice to the Plaintiffs declaring their gross revenues were way below the $500,000 threshold and invited the plaintiffs to dismiss their lawsuit. The plaintiffs did not respond. The Defendant moved for summary judgment.

To award sanctions, there must be a showing of “objective unreasonableness.” The court does not want to chill any future FLSA lawsuits. So, it asked the question, in a run-of-the-mill wage lawsuit, how would the plaintiffs find out how much the employer had in gross sales? The court suggested the plaintiff firm could have simply looked at the menu and interviewed customers. The law firm could also look at other shop locations, review court filings of similar businesses, review plans for expansion, etc. The court would not limit the inquiry and did not expect the investigation to be perfect. The plaintiff law firm explained various factors that the court found unpersuasive. The defendant had not submitted its “safe harbor” notice until a year into the lawsuit. The lawyers had assumed the employer was interested in settling. The two attorneys could not be sure the owner’s gross income was below $500,000 until he had been deposed. But, the court noted it was the pre-lawsuit investigation that was at issue, not what transpired after they filed the lawsuit.

So, the court sanctioned the law firm $4,000 under Fed.R.Civ.Pro. Rule 11. The defense attorneys had billed its client some $8,500.  See decision here. There are some things every lawyer should be sure of before filing suit. Whether the lawsuit will survive a motion for summary judgment is critically important.

Wow, I am speechless. In a 2013 interview, Donald Trump, Jr. said women who cannot handle life in a big corporation should go teach kindergarten. He was speaking about sexual harassment in the workforce. According to the Huffingtonpost report. First, as the proud parent of two sons, I have spent my share of time with kindergarteners. That is no easy task. But, really, women should be able to “handle” sexual harassment? That is wrong on so many levels. How does a woman “handle” it when she is held to higher standards and only finds out about those higher sales goals when she is being escorted out the door? How does a woman “handle” it when she is fired while out on pregnancy leave? How does anyone “handle” it when upper management engages in biased evaluations of your work?

What to think about a young man who has those views at such an early age? We are accustomed to older men holding onto out-dated views. Perhaps, those views are not as out-dated as we would wish.

Threats of a lawsuit are always a little dubious. It is easy to make threats. Filing an actual lawsuit requires much more work. Donald Trump fired off such a threat the day after the New York Times published a piece describing his sexual assault of two women. Mr. Trump’s lawyer threatened to sue the Times for libel. The in-house counsel for the Times quickly fired back with his own letter. But, his lawyer contained actual legal reasoning. Libel, explained the Times‘ lawyer, indicates someone’s reputation has been harmed. The essence of libel is protection of one’s reputation. Mr. Trump has bragged about his nonconsensual touching of women. Mr. Trump let a radio DJ refer to his daughter as a “piece of ass.” He said publicly that he would walk in on beauty pageant contestants in a state of undress. Several other women, apart form the Times article, have come forward to report on Mr. Trump’s sexual shenanigans. The in-house counsel concluded, this reputation was created by Donald Trump himself through his words and actions. Nothing in the Times article had any effect on the reputation he created.

Exactly. Libel only applies if the reputation has been harmed. If a person proclaims he has robbed stores, then a newspaper article that describes him as a robber does not harm his reputation. It is no wonder that a few lawyers on my Facebook page described the Times response as drafted by a “real” lawyer. Threats to sue only work if they convey some minimal legal ability to follow through. See ABA Bar Journal report.

Sheriff Joe Arpaio wants the country to think he is tough. He is tough on prisoners. Unfortunately for Hispanics, he is also tough on Hispanic Americans. I last wrote about Sheriff Arpaio here. He would not refrain from targeting Hispanics in his traffic stops. The federal judge in Phoenix has warned Sheriff Arpaio several times. The “tough” sheriff claims he violated the judge’s order unknowingly. But, Judge Murray Snow does not believe him.

Sherri Arpaio has done little to preserve his credibility. He famously hired a private investigator to investigate the judge’s wife. He was found to have hidden some 50 hard drives regarding a secret investigation of Judge Snow himself. Sheriff Arpaio seems to enjoy controversy.

As expected, he has been charged with criminal contempt. Criminal contempt can be a misdemeanor or a felony. If charged with a misdemeanor violation, he would face just six months in jail. See CBS News report. But, a felony conviction would force him to give up his Sheriff position.

This all stems from a racial harassment lawsuit the Sheriff lost three years ago. All he had to do was follow the judge’s orders. We can only assume he wants this sort of fuss with the the federal judge. He must see political advantage in this.

Well, I have wondered why someone like Donald Trump, who routinely makes prejudicial statements, has not been sued for discrimination. The answer is he has been sued. Or, at least, one of his golf courses was sued for discrimination. One of his Florida golf courses was sued in 2012 because he pressed management to replace “unattractive” female employees with better looking workers at his golf course in Florida. One former employee testified that she heard Mr. Trump tell managers many times that the restaurant hostesses were not pretty enough and needed to be replaced.

The employees themselves would rotate hostesses to make sure ether best looking women were working when Mr. Trump would visit. His predilection a so well known that that they conspired to save their jobs.  The “bulk” of the lawsuit was settled with some employees for $475,000 in 2013. Another woman entered into a separate confidential settlement. That is a huge amount when compared tot he average discrimination lawsuit. See CNN news report. Those sorts of comments by Mr. Trump are considered direct evidence of discriminatory bias.

And, just when I thought this was the only discrimination case against Mr. Trump, there is this account of a sex harassment lawsuit filed by a Florida woman in the 1990’s. Jill Harth was in a long-term relationship with George Houraney. The couple sought to use some of Trump’s properties for their various contests, one of which was a beauty contest. Ms. Harth accused him in a later lawsuit of continually groping her, at meetings, at restaurants, everywhere. She accused him of trying to rape her. See New York Times report.

Ms. Harth and Mr. Houraney eventually had to sue Mr. Trump when he walked away from their written agreement. Even later, she became his girlfriend for a time when he was breaking up with Marla Maples. Even today, in the last few months, she tried to obtain work from Mr. Trump working on his makeup and hair. What an odyssey.

I am just surprised he has not been sued more.