Human Resources has called you into a meeting. At first, you are nervous. You wonder if someone caught you taking Carl’s lunch from the fridge or if all of those pens you accidentally put in your pocket are going to come back to haunt you. But
On December 18, 2020, I published a blog all about 42 U.S.C. § 1981 (“§ 1981” or “Section 1981”) claims. I’m sure you remember it. It was pretty great, if I do say so myself.
But just in case, very briefly, § 1981 prohibits race discrimination
If a person or company breaches a contract they have, that person or company can be sued immediately in court. If someone gets in a car wreck, in theory, a lawsuit could happen the next day. Ditto if you don’t get paid minimum wage or overtime. But with employment
Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work. That raises the question of what equal work means. The statute itself helps with this question a little bit. The text of the statute states that work is considered equal if the performance of both jobs
In order to make a viable retaliation claim, a plaintiff must generally have evidence of each element of a what is called a prima facie case. The phrase prima facie simply means “on first impression.” In the employment law context, a prima facie case means the basic elements of a claim that, if true, give rise to an inference of discrimination or retaliation. So for a retaliation claim, a plaintiff must usually show the following elements (1) that the plaintiff engaged in protected activity, (2) that the plaintiff suffered a materially adverse action, and (3) that a causal link exists between the protected activity and the adverse action. If facts establish each of those elements, then under the law, an inference of retaliation arises, which the defendant must then rebut by producing a legitimate, non-retaliatory reason for the adverse action. The purpose of this post is to briefly discuss what is necessary to show that third all-important causal link element under Fifth Circuit law.
The first thing that needs to be made clear is what level of causation is necessary to show the causal link. The causal link standard is very low. According to the Fifth Circuit, all a plaintiff must show to establish a prima facie causal link is that the protected activity and the adverse action are “not wholly unrelated.” See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). So how do you do that?
In 2019, the attorneys at Wiley Walsh, P.C. acted as lead counsel in two federal jury trials and one arbitration. With help by attorneys from Wiley Wheeler, P.C. on the jury trials and help by attorneys from Rob Wiley, P.C., our clients prevailed in all three proceedings. We also co-counseled with the EEOC in a case that resulted in a cutting-edge consent decree against a major airline involving online sexual harassment.
In 2020, despite a pandemic, shelter-at-home-orders, and the closing of the courts to in person proceedings, we did even better. Although, there were no trials, our appellate docket was very successful.
And it started right away. First, on January 7, the Administrative Review Board reversed summary judgment against one of our clients asserting retaliation under the Surface Transportation Assistance Act. We alleged that our client was retaliated against by a trucking company for reporting safety issues. The Administrative Review Board held that our client was entitled to a full hearing on the merits. That hearing is currently scheduled for April 2021.
Continue Reading 2020 was a very good year for our clients and Wiley Walsh, P.C.
Let’s say you have been discriminated against based on your race, but either work for a company with less than 15 employees or are an independent contractor. You know that neither Title VII nor the Texas Labor Code applies to you. Is there any other protection? YES! The answer is 42 U.S.C. §1981.
Let’s say you are an employee of a company with 15 or more people, but that you didn’t hire a lawyer until well after the 300-day statute of limitations for Title VII to assert your race discrimination claim. Do you have any hope? YES! The answer is 42 U.S.C. §1981.
So, what is 42 U.S.C. § 1981?
42 U.S.C. § 1981 prohibits race discrimination and retaliation in the making and enforcing of contracts. It is meant to provide “broad and sweeping” protection against all race discrimination. Faraca v. Clements, 506 F.2d 956, 959 (5th Cir. 1975). According to the Supreme Court, the Civil Rights Act of 1866, from which § 1981 is derived, “was designed to prohibit all racial discrimination . . . with respect to the rights enumerated therein.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-36 (1968).
Even if you’ve never seen the TV show or read any of the books about Perry Mason, criminal defense attorney extraordinaire, you know the moment I’m talking about. It happens at the end each episode or book. Perry Mason is representing an innocent man or woman, but things are not looking good. The District Attorney, Hamilton Burger is on the attack, presenting one damning piece of evidence after another. But then Perry calls one more witness or recalls a witness from earlier in the trial and everything changes. Under withering cross-examination, Perry breaks down the witness by pointing out inconsistencies, falsehoods, and ulterior motives. By the end, the witness is a reduced to a quivering mass of raw nerves. And then the witness confesses! Or points to the real guilty party sitting in the back row of the courtroom. The charges against Perry’s client are quickly dropped and Perry Mason once again emerges victorious.
Continue Reading The Case of the Missing Perry Mason Moment
Halloween is one of my favorite times of the year. I am a big fan of the horror genre. When I was in undergrad, I took an entire semester-long course on the Vampire in Slavic Culture. I saved every one of the books that I had to buy for that course. I own the complete 30-film collection of Universal Studios’ Classic Monster movies on blu-ray. I have gone on many ghost tours in different cities and have stayed in supposedly haunted hotels.
In Texas, since it is a conservative state within, arguably, the most conservative federal appellate circuit, plaintiff’s side employment law can be a horror show. And so, with that masterful segue, let’s do something kind of fun . . . for a legal blog. Let’s look at haunted houses and vampires through the lens of employment law.
I hear it all of the time during consultations. A potential client will tell me about the discrimination they have experienced at work. They will describe how they were the only member of a protected class (age, race, sex, disability, religion, national origin, color) who applied for a promotion and that in fact, they were the only one qualified for the position, but they didn’t get it. “You know,” they will continue, “I can’t think of anyone in my protected class who has been promoted to such a position.” I will then ask this person why they think they were not promoted. The person will then invariably say, “I think it was because of my protected class, but I can’t prove it.”
Continue Reading Circumstantial Evidence is just as Good as Direct Evidence
