Paige Melendez
Dallas Employment Lawyer Paige Melendez

For a long time, there was a gray area under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and relevant case law when it came to accommodating pregnancy in the workplace. Under the current laws, discriminating against employees for being pregnant is illegal, but the current law’s protections do not extend far enough. The Pregnant Workers Fairness Act (“PWFA”) bridges this gap and goes into effect on June 27, 2023. Let’s explore the key provisions of this act and its significance in promoting workplace equality and supporting pregnant workers.

The PWFA requires employers to provide reasonable accommodations to pregnant employees. Examples of these accommodations include adjustments to work schedules, access to water and bathroom breaks, modified tasks, assistance with heavy lifting, and temporary transfers to less strenuous positions. The PWFA mirrors the process under the Americans with Disabilities Act for receiving accommodations. In brief, engaging in the interactive process would mean approaching your employer or putting your employer on notice of your pregnancy. Then, engaging in the interactive process by asking for accommodations and working with your employer to find a reasonable accommodation. 

The PWFA also mandates that employers provide written notice detailing their protections under the act. This includes information about the right to be free from pregnancy discrimination, the right to reasonable accommodations, and avenues for reporting violations. Additionally, employers are required to maintain records related to reasonable accommodations and make them available for inspection upon request. Both private and public employers are covered as long as an employer has fifteen employees including Congress, Federal agencies, employment agencies, and labor organizations.

The PWFA like the other discrimination laws has robust safeguards against retaliation towards an employee for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation). Employees who exercise their rights under the Act by filing complaints with the Equal Employment Opportunity Commission (EEOC) or pursuing legal action are likewise protected from adverse actions such as demotion, termination, or harassment. More specific actions that are prohibited are the denial of a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; or require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. 

Prior to the PWFA being passed, case law from the Supreme Court clarified that employers must treat pregnancy-related limitations in the same manner as other temporary disabilities under the Pregnancy Discrimination Act.  For example, if an employer allowed a light-duty position for one employee, then a pregnant employee would have to be extended the same consideration. On its face the decision seems to reinforce the policy idea behind the Pregnancy Discrimination Act that prohibits discrimination against an employee because they are pregnant. In practice, it relieved employers from having to extend specific accommodations to pregnant employees outside the confines of the ADA. The policy left several gaps in coverage for pregnancy employees, which is why the PWFA is such a necessary measure.  

The new law goes into effect around the end of June, but pregnant employees are still covered under the current discrimination laws like the Pregnancy Discrimination Act. Unfortunately, the PWFA is not retroactive, but it does not mean that it is too early to learn about this new addition to pregnant employees’ rights under the law. Thus, employees who believe they have experienced pregnancy discrimination or have been denied reasonable accommodations can speak to a Dallas Employment Lawyer about what actions can be taken before or after the new law has taken effect.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: The EEOC is tasked with the enforcement of many of the laws that ensure a fair and equitable workplace. As such, the role of who is at the helm of the agency is not small matter. Recently, Karla Gilbride has been appointed as the new General Counsel for the EEOC. One look at her track record indicates that this is great news for employees.

The recent confirmation of Karla Gilbride as the new General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC) marks a critical turning point in the pursuit of safeguarding workers’ rights and combating discrimination in the workplace. As a prominent civil rights litigator, Gilbride’s track record and expertise exemplify her capability to steer the EEOC’s litigation efforts with integrity and proficiency.

With a remarkable history of representing workers in pivotal legal battles, Gilbride has been a strong advocate for employee rights, consistently securing victories in cases concerning workplace discrimination, unsafe working conditions, and arbitration issues. Notably, her success before the US Supreme Court in ensuring the protection of an employee’s right to pursue overtime claims signifies her unwavering commitment to upholding workers’ interests.

Furthermore, her recent triumph against Amazon Inc. in challenging hazardous working conditions during the Covid-19 pandemic highlights her dedication to ensuring a safe and equitable work environment for employees, especially during unprecedented crises. Thus it is more than fair to state that Gilbride will join the agency with a deep understanding of the laws the agency is tasked with enforcing. 

But, beyond the courtroom, Gilbride has also been a champion of worker rights. Gilbride’s involvement with the Civil Rights Education and Enforcement Center and her role in enhancing accessibility to the civil justice system for incarcerated individuals and their families showcase her dedication to promoting inclusive legal practices. Her advocacy for intersectional disability justice further underscores her commitment to ensuring equal opportunities and rights for all, regardless of background or circumstance.

At this juncture, Gilbride’s appointment will undoubtedly provide a much-needed breath of fresh air to the agency. The appointment of Gilbride is particularly crucial in the context of recent challenges to the EEOC’s authority, including attempts to limit the General Counsel’s power to initiate discrimination lawsuits without full commissioner approval. Gilbride’s extensive experience and deep understanding of the intricacies of labor law suggest a promising reversal of the constraints placed on the EEOC during the previous administration. With her at the helm, the EEOC is poised to regain its capacity to effectively address workplace discrimination, ensure fair treatment, and advance the cause of diversity and inclusion.

Furthermore, given the EEOC’s new strategic enforcement plan, it appears that her appointment will fit perfectly. In fact, Gilbride’s confirmation aligns seamlessly with the EEOC’s recent strategic enforcement plan, focusing on emerging issues such as AI-generated bias, workplace harassment, and pregnancy discrimination. Her expertise and commitment to combating discriminatory practices, coupled with the agency’s strengthened focus, will undoubtedly fortify the EEOC’s efforts in promoting fair and equitable employment practices across various industries.

As the EEOC charts a new course towards more inclusive and equitable workplaces, Karla Gilbride’s appointment as the new General Counsel signals that the EEOC may be ready to take the helm in enforcement the laws that are incredibly important to all employees nationwide. With her proven dedication to upholding civil rights, empowering marginalized communities, and advancing the cause of justice, the EEOC stands poised to usher in a new era of progressive enforcement and policy direction, ensuring that the fundamental rights of all employees are protected and upheld.

Harjeen Zibari Trial Attorney

In lots of ways, Googling legal terms can be like Googling medical terms. You might get an amalgamation of concepts that might not make a whole lot of sense when put together. Therefore, there’s lots of information out there that isn’t legally inaccurate, but needs to be explained by an attorney with respect to your specific circumstances to create an accurate picture. So, sometimes clients will come to us with an idea of what they think their claim might be, but not have the exact verbiage correct. And that’s okay! That’s what we as lawyers are here for: to provide explanations to our clients and help them navigate the daunting American legal system. 

A lot of our practice as employment attorneys revolves around the ending of an employment relationship. This usually falls in to two categories: wrongful termination or constructive discharge. But they are not interchangeable terms, and it is important to understand that when embarking on an employment case. 

Wrongful termination – for cases where the employee was fired.

Wrongful termination occurs when an employer fires an employee in violation of the law or employment contract. It means that the employer has taken an unlawful action in ending the employment relationship. Texas is an at-will state, which means that the employment relationship can be ended at any time for any reason. However, it cannot be for an unlawful reason—giving rise to an unlawful termination claim.

Wrongful termination can be based on various factors, including discrimination (race, sex, age, religion, etc.), retaliation (for engaging in legally protected activities like reporting harassment or safety concerns), or breach of an employment contract (as opposed to an at-will employment agreement).

If an employee believes they were wrongfully terminated, they may have grounds to file a lawsuit against their former employer to seek damages or reinstatement.

However, the legal claim itself won’t be for wrongful termination. The claim would be brought under the statute that defines the unlawful basis for termination. For example, in a case where someone was fired for disclosing their pregnancy to their employer and requesting leave, the claims would technically be brought as a sex discrimination and/or retaliation claim in violation of Title VII of the Civil Rights Act of 1964. The idea is still the same, though: the case is about a wrongful termination in violation of someone’s legally-protected rights.

Constructive Discharge – for cases where the employee quit.

Constructive discharge, on the other hand, is a situation where an employee resigns from their job because the working conditions have become so intolerable that they feel they have no other choice but to quit.

In Texas, as in many other jurisdictions, constructive discharge is treated similarly to wrongful termination in terms of potential legal remedies. If an employee can prove that they were constructively discharged due to unlawful or intolerable working conditions (such as harassment, discrimination, or a hostile work environment), they may have grounds for a lawsuit against their employer.

A typical instance of constructive discharge is when the employee is faced with an unacceptable decision: quit or be fired. In either instance, you were going to have to leave the workplace. However, the reasons for being offered that inacceptable ultimatum must still be tied to a legally protected avenue (i.e., your status in a protected category or engaging in protected activity). 

However, the threshold to prove constructive discharge is much higher than to prove wrongful termination. Put very delicately, constructive discharge cases are difficult. To establish a constructive discharge claim, the employee typically needs to show that the employer’s actions or conditions were severe enough that a reasonable person in their situation would have felt compelled to resign. This is not whether or not the person who quit thought their decision to do so was reasonable by a subjective measure, but an objective evaluation regarding the decision to quit under those circumstances. Texas (and the Fifth Circuit) are hostile jurisdictions to constructive discharge claims. 

These are all very short and simple explanations. As with everything in the law, there are more nuances to these concepts, how each may be applied depends on the facts of each case. (I know, a lawyer saying it depends, how groundbreaking.) 

Therefore, if you are still employed but are being subjected to discrimination and retaliation in the workplace, it is important to consult with an employment attorney to discuss your options going forward prior to resigning so you may make an informed decision on how to proceed. 

             If you believe you have been wrongfully terminated, or wonder if your potential resignation would be considered a constructive discharge, contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

On August 18, 2023, the Fifth Circuit issued an en banc opinion in Hamilton v. Dallas County, No. 21-10133 that overturned decades old judge-made law limiting actionable claims under Title VII.  Let’s take a look.

What is Hamilton about?  Hamilton involves how the Dallas County Sheriff’s office schedules time off for male and female detentions service officers.  Specifically, according to the county’s policy, detention service officers are allowed two days off per week.  However, female officers may not take those two days over the weekend, while male officers can.  In other words, female officers are not allowed to ever have a weekend off.  However, pay was not affected and the female officers still received two days off just like the men each week.  Nine female officers sued.  Importantly, the county admitted that the scheduling policy was sex-based.  The district court granted summary judgment in favor of the county based on existing precedent.  The three-judge Fifth Circuit panel affirmed summary judgment on the same basis.  The case was then taken up by the court en banc.      

So, what is an en banc opinion and how is it different than other opinions?  Good question.  Normally, appellate opinions are issued by three-judge panels.  These panels are not permitted to overturn circuit precedent or other panel decisions.  In Hamilton, the original three-judge noted this fact when they ruled in favor of Dallas County, saying that precedent bound them to find that the adverse action alleged was not an “ultimate employment decision” and therefore, under Circuit precedent not actionable under Title VII’s discrimination provisions.  The three-judge panel’s opinion then actually urged the full Fifth Circuit to hear the case en banc.  What that means is that the three-judge panel asked for all active judges on the court to take a look at the case.  The reason the panel did that is because the court, sitting en banc, can overturn precedent and reverse prior panel decisions.  The Fifth Circuit agreed to hear the case en banc and that is how we got the opinion on August 18, 2023. 

Ah, you say, well, what was the law before Hamilton?  For almost thirty years, in the Fifth Circuit, a Title VII discrimination claim was only actionable is it was considered an “ultimate employment decision.”  Generally, ultimate employment decisions only included actions that affected pay or benefits, such as hiring, granting leave, termination, promotion, or compensation.  If it wasn’t one of those types of actions, then a plaintiff had no case unless the plaintiff could show a hostile environment based on a protected characteristic that included severe or pervasive conduct, which is a whole other can of worms I won’t get into here.  As the Fifth Circuit points out in Hamilton, the requirement of an ultimate employment decision leaves a lot of unactionable discrimination for employers to engage in based on a protected characteristic.    

And what did Hamilton change?  Hamilton completely jettisons the “ultimate employment decision” requirement as atextual and against the policies of Title VII.  The Fifth Circuit expressly rejects a requirement that an adverse action have an economic effect on a plaintiff at the time or even that the discrimination lead to an economic effect on the plaintiff.  Instead, the Fifth Circuit hews to the text of the statute and states, “a plaintiff need only show that she was discriminated against because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment.’”  That means things like shift changes, transfers, and many other discriminatory actions that were previously not actionable may now be asserted under Title VII.  To be clear, this does not mean that there is no minimum level of actionable harm.  The Fifth Circuit explicitly says de minimis harms are not actionable.  However, the Court does not state exactly what constitutes de minimis harm and expressly reserves that determination for future cases.

Finally, the decision brings the Fifth Circuit in line with the Sixth Circuit, which reached the same conclusion in the race discrimination case, Threat v. City of Cleveland, 6 F. 4th 672(6th Cir. 2021).

If you believe you have been discriminated against based on a protected characteristic, you should consider consulting an attorney to discuss potential options.  The attorneys at Wiley Walsh, P.C. have extensive experience representing individuals with claims under Title VII.  You can book a consultation at our website or by calling 512-271-5527.

Shaleigha Shepard
Shaleigha Shepard Trial Attorney

In today’s ever-evolving job market, workforce reductions and layoffs have become more prevalent, creating uncertainty and stress for employees. To protect the rights of workers during these difficult times, the federal government established the Worker Adjustment and Retraining Notification (WARN) Act. This crucial legislation aims to ensure that employees in Houston, Texas, and beyond receive fair treatment and adequate support when facing job loss due to plant closures or mass layoffs. In this blog post, we will explore the key aspects of the WARN Act and highlight specific information that would be helpful to employees in Houston, Texas.

The Purpose and Scope of the WARN Act

The Worker Adjustment and Retraining Notification Act (WARN Act) was enacted in 1988 with the primary goal of safeguarding employees’ interests during significant workforce changes. It applies to employers with 100 or more full-time employees, including part-time workers whose combined hours total at least 4,000 hours per week. This coverage extends to both private and public sector employers, ensuring a wide range of workers are protected under this law.

Plant Closings: How it Affects Houston Employees

In Houston, Texas, the WARN Act comes into play when a company decides to permanently or temporarily close a facility, resulting in the displacement of 50 or more full-time employees within a 30-day period. If you are an employee in Houston and your workplace is facing closure, the WARN Act ensures that your employer must provide you with at least 60 calendar days’ advance notice. This advance warning period is crucial as it allows you to begin planning for the future, explore new job opportunities, or enroll in retraining programs to acquire new skills for alternative employment.

Mass Layoffs: Protections for Houston Employees

The WARN Act also covers mass layoffs, defined as employment terminations affecting 500 or more full-time workers, or between 50 and 499 full-time employees if they constitute at least 33% of the employer’s total workforce. As a Houston employee affected by a mass layoff, you have the right to receive a 60-day notice from your employer before the layoff takes effect. This notice period provides you with essential time to assess your options, secure potential job opportunities, or access available resources to assist you during the transition.

Notice Requirements and Exceptions

The WARN Act mandates employers to adhere to strict notice requirements when facing plant closings or mass layoffs. In Houston, Texas, employers are required to provide written notice directly to affected employees, as well as to the state and local government authorities. However, there are exceptions to the 60-day notice rule if the layoff is caused by unforeseeable business circumstances or a natural disaster. In such cases, employers must still provide as much notice as possible and explain the reasons for the reduced notice period.

Rights and Protections for Houston Employees

As an employee in Houston impacted by a plant closing or mass layoff covered under the WARN Act, you have specific rights and protections. These include receiving back pay and benefits for the 60-day notice period that you should have received. Additionally, the law allows you to pursue legal action if your employer fails to comply with the WARN Act, giving you recourse if your rights are violated during the layoff process.

The Worker Adjustment and Retraining Notification Act (WARN Act) offers vital protections and support for employees in Houston, Texas, facing job loss due to plant closings or mass layoffs. By understanding your rights under this legislation, you can better navigate the challenges of workforce reductions and take proactive steps towards securing your future.

If you or someone you know is facing job loss due to plant closings or mass layoffs, don’t hesitate to reach out and speak with me or another attorney right here in Houston at Wiley Wheeler, P.C. We are here to offer assistance and guidance during these challenging times.

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

You are in the midst of the job hunt. Each day is filled with interviews and tedious applications that only find their way to a black box, which seems to only produce either silence or a carefully, but politely, worded emails thanking you for your application and perhaps informing you that you are just not quite the right fit. Finally, after months of searching, you receive your first offer. Terms and conditions are swept aside at the thought of income; you can finally support yourself. You naturally sign the various, legally complex documents they need and prepare for your first day. Years pass, and you decide it is time to take on new endeavors. You inform your superior and they take it with grace.  Upon your exit, however, you are reminded of a single document you signed; a document which limits your right to go to court. You discover you are bound by an arbitration agreement.

 There are many things wrong with the American judicial system, several of which can be found within the processes that are influenced by financial gain and interest groups. However, there are few aspects of the law that are so blatantly unjust as arbitration agreements. An arbitration agreement is a document, typically signed at the start of employment, that restricts your ability to go to court and instead forces you to go through a process naturally called “arbitration.” 

Arbitration can be thought of as going to court, but on a much smaller scale. You still conduct discovery, take depositions, file motions, and engage in the necessary processes that are typically found within US Courts. However, your case is presented to an arbitrator rather than a judge or jury. The arbitrator is the decisionmaker; for all intents and purposes, they are the judge in your matter. They are a neutral figure, but the employer typically gets to choose who they want to serve as arbitrator. 

Imagine a sporting event where your competitor gets to choose who the referee is. You would hope that the referee would abide by the rules, be neutral, and remain unbiased. However, you are keenly aware that opposing side did not choose this referee blindly; there is a reason the other team chose this specific person. Perhaps the chosen referee tends to favor teams from the opposing side’s geographic region; perhaps the referee tends to rule against underdogs; or perhaps the opposing team has a positive history with the referee. Regardless, they are in some way advantaged. In arbitration, the employer is similarly advantage. It is due this fact that arbitrations are inherently unfair to the plaintiff. The author is painfully aware of  how blatantly illegal this may be appear. After all, how could your employer possibly limit your right to go to court? 

Unfortunately, the law very much allows for this to happen. The rationale is that you knowingly consented to it when you signed the myriad documents you were given when you started your employment. “You should have done your due diligence,” a decisionmaker may say. This naturally raises the questions of how you can avoid being bound by an arbitration agreement. The answer is to simply read your initiating documents. Look for terms like “arbitration” or for some language involving waivers. If you discover this, then you may want to try to negotiate out of it. However, employers rarely budge on these matters and you will more than likely have to make the decision to either bind yourself or pursue employment elsewhere. 

Nonetheless, all of this should not dissuade you from pursuing your case should you have been wronged, you should still very much call out wrongdoing when it occurs in the workplace. Arbitration does not devalue the merits of your case, but it does alter the odds. Should you find yourself restricted by the tendrils of an arbitration agreement or if you suspect that you are, then you should speak to an employment attorney to gain confirmation and discover what your options are.

Harjeen Zibari Trial Attorney

This week, our law firm is at the annual National Employment Lawyers Association (NELA) conference in Chicago. The convention kicked off with remarks from very bold and inspiring plaintiffs in landmark cases. One of the plaintiffs we heard from was Gerald Bostock, who was one of the Plaintiffs (and the named plaintiff) in the milestone United States Supreme Court Case, Bostock v. Clayton County, which was decided on June 15, 2020. This case allowed for one of the basic tenets of employment law. In Bostock, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin, also protects employees from discrimination based on their sexual orientation or gender identity. 

Bostock originated from three separate lawsuits filed by Gerald Bostock, Donald Zarda, and Aimee Stephens, who were discriminatorily terminated. Bostock, a gay man, had been fired from his position as a child welfare advocate for his sexual orientation. Zarda, also a gay man, was fired from his job as a skydiving instructor for his sexual orientation. Stephens, a transgender woman, was fired from her position as a funeral director for her gender identity. The cases were eventually consolidated and heard by the Supreme Court under Bostock.

In a 6-3 decision, the Court ruled that Title VII’s prohibition on sex discrimination does encompass discrimination based on sexual orientation and gender identity. Justice Neil Gorsuch, writing for the majority, analyzed the text of the statute and concluded that discrimination against employees because they are gay or transgender is inherently based on sex. The Court reasoned that if an employer fires a male employee for being attracted to men but would not fire a female employee for being attracted to men, then sex is a factor in the decision and therefore constitutes sex discrimination.

The Court rejected arguments that the legislators who drafted the Civil Rights Act in 1964 did not intend to include sexual orientation or transgender status within the scope of the law. Instead, the majority focused on the textual interpretation of the statute itself, noting that the language of Title VII is broad and prohibits discrimination “because of sex,” which encompasses the discrimination faced by Bostock, Zarda, and Stephens.

The decision in Bostock v. Clayton County has significant implications for LGBTQ+ rights in the workplace. It establishes that it is unlawful for employers to discriminate against employees on the basis of sexual orientation or transgender status. This ruling provides protection to LGBTQ+ individuals in the context of hiring, firing, promotion, and other employment-related decisions.

The case has been hailed as a major victory for LGBTQ+ rights advocates, as it extends federal employment discrimination protections to millions of workers across the United States. It also aligns the Court’s interpretation of Title VII with the evolving societal understanding of LGBTQ+ rights. Prior to this decision, several lower courts had reached conflicting conclusions on this issue, leading to legal uncertainty and inconsistency across different jurisdictions. Now, with a Supreme Court decision, it is the law of the land: discrimination based on sexual orientation or gender identity is prohibited under Title VII of the Civil Rights Act of 1964. 

But listening to Mr. Bostock speak reminded us of the people who battled tirelessly on behalf of themselves and countless others for basic rights in the workplace. It also reminded us about all the additional considerations for a plaintiff in an employment case. For example, he reminded us that his former employer terminated him for his sexual orientation when he was recovering from cancer—leaving him without health insurance when he needed it the most. He also reminded us that he is the only plaintiff of that paramount case who is with us today. In giving his remarks, he ensured we all remembered the memories of Donald Zarda, who passed away in 2014 before the case was decided, and Aimee Stephens, who passed away just about a month and a half before the case was decided. 

Because of the bravery and commitment of people like Aimee Stephens, Donald Zarda, and Gerald Bostock, queer and trans people have protections in the workplace under Title VII of the Civil Rights Act of 1964.  If you have have been discriminated against for your sexual orientation or gender identity, contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today. 

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Section 1981 and Title VII are both federal laws in the United States that address workplace discrimination. While they share some similarities, there are notable differences between the two laws in terms of their scope, coverage, and legal requirements. Understanding these distinctions is essential for individuals who may be facing discrimination in the workplace.

With regards to the scope of these laws,Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race, color, religion, sex, and national origin, and it only applies to employers with 15 or more employees, including private employers, state and local governments, and educational institutions. On the other hand, Section 1981 of the Civil Rights Act of 1866 prohibits only racial and ethnic discrimination in contracts and the workplace, and it applies to all private employers regardless of their size. 

Of great importance is the fact that to establish a claim under Title VII, the individual must demonstrate that the discrimination was based on one of the protected characteristics mentioned above. Discrimination claims under Title VII can be based on either disparate treatment (intentional discrimination) or disparate impact (neutral policies or practices that disproportionately affect protected groups). Yet, for Section 1981, claims require a showing of intentional racial discrimination. The individual must prove that the discrimination occurred because of their race or ethnicity, and that they were treated less favorably than others who were similarly situated.

As far as how fast one must act to preserve their rights under the law, another major difference is revealed. Under Title VII, individuals must file a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged discriminatory act, or within 300 days if there is a state or local agency that enforces anti-discrimination laws. Filing a charge with the EEOC is a prerequisite before bringing a lawsuit in federal court. Moreover, you must exhaust the EEOC’s administrative process in order to file suit in court. But Section 1981 has a longer statute of limitations, allowing individuals to bring claims within four years( or two years in some instances) from the date of the alleged discriminatory act. 

Finally, the last big difference is with what can an individual recoup if they were to prevail. Mostly, these two laws are similar, with both allowing for a wide range of remedies, including back pay, front pay, compensatory damages (such as emotional distress), punitive damages (in cases of intentional discrimination), injunctive relief, and attorneys’ fees. However, the availability of punitive damages is limited based on the size of the employer, but in Section 1981 there are no caps on the damages that an individual may receive. 

In summary, while both Section 1981 and Title VII address workplace discrimination, they have key differences in terms of their scope, covered characteristics, intent requirements, statute of limitations, and available remedies.

It’s important to note that these are general differences between Section 1981 and Title VII, and specific legal requirements and interpretations may vary in different jurisdictions or based on court decisions. Consulting with an attorney who specializes in employment discrimination law can provide further guidance on the application of these laws to individual cases.

That is why it is important to consult with an attorney that specializes in labor and employment law.  Here, at Wiley Walsh, P.C. we specialize in labor and employment law. So, if you feel like you have been discriminated, feel free to contact us for a consultation.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

As most employment lawyers in Texas will tell you, we have the doctrine of at-will employment. At-will employment means that employees have very few protections in the workplace. At-will employment means that even after a 20-year career with a company, if new management comes in and decides to “shake things up” by firing the old guard and bringing in the new, unless there was an unlawful motivation, they can do this. The employees with 20 years of tenure with the company could be entirely without recourse.  

 What is written into the law (as well as what is not) determines whether a motivation is unlawful. We have federal and state laws that protect employees from discrimination based on race, color, national origin, religion, sex, age, and disability.  We have federal laws and state laws that protect employees from being ripped off by those employers that think it is perfectly fine to steal wages from their employees. We have federal law that protects an employee’s overtime pay. We also have federal laws that are designed to ensure safe working conditions for employees working in various industries.  

If there is a conflict between federal and state law, federal law will prevail. This is the doctrine of preemption at work, which is based on the Supremacy Clause of the U.S. Constitution. Similarly, if there is conflict between state and local law, state law preempts the local. Yet, where there is no conflict between a high authority (e.g., federal law) and lower (e.g., state), or where state or local law is designed to provide more protections than federal law, the protections can stand.  

They stand until lawmakers take them away.

State and local laws apply to people who live or work in a specific state, county, city, municipality, or town.  When looking at our various levels of government, it is easy to see that it is our local government that is closest to our day-to-day lives. It is the elected officials of our counties, cities, towns, and villages that know what the people in their locality want, and more importantly need.  

With that being said, shame on you Texas. Not all of Texas; Texas I love you. However, the power grab that is known as the Death Star bill (HB 2127), is very disheartening. Despite being born and raised in Texas, I can certainly be disappointed by the politics. 

On May 24, 2023, Death Star landed on the Governor’s desk, where it now waits to be signed. When signed, it may very well bring destruction to a city or small town near you. State Sen. Brandon Creighton(R) is quoted stating the bill is aimed at “activist cities.”  What he is really saying is that the bill is aimed at cities that listen to their residents or constituents, know and understand their needs, and work to protect their interests by creating local ordinances specific to the communities they serve. 

House Bill 2127 restricts the ability of local elected officials to regulate in a number of areas important to their residents by banning ordinances related to state codes for Agriculture, Business and Commerce, Finance, Insurance, Natural Resources, Property, Occupations and Labor.

For employment law, what this bill means is that local officials cannot create ordinances related to employment leave, hiring and firing, rest breaks, pay, employment benefits, or “any other terms of employment that exceed or conflict” with state or federal law.

With Texas being one of the states showing little concern for protecting the rights of workers, what little power local leaders had to make things just a bit better for their residents is being stripped away. 

Where workers had found a way to make strides locally, our state government is determined to take those gains away.  Workers must ban together and keep fighting. Work even harder to remove elected officials from state government that have very little regard for the lives of everyday working people. Every vote count in every election.  

Colin Walsh
Texas Employer Lawyer Colin Walsh

Sometimes more than one plaintiff has the same claim against an entity.  When that happens are there generally three ways such a case can be brought.  One way is obviously to simply join all of the plaintiffs to the lawsuit.  If there simply are too many, then the plaintiff can try to certify a class action.  However, if the case involves minimum wage, overtime, or equal pay, then there is a third way, which is known as a collective action.  A few years ago, the Fifth Circuit changed how collective actions are certified by courts within the Fifth Circuit. That is what this blog is about.

Under the Fair Labor Standards Act there is a collective action procedure that allows an employee to bring an action against an employee on behalf of herself and any other “similarly situated” employees who elect in opt-in to the action. 29 U.S.C. § 216(b).  This opt-in procedure is quite different from a standard class action, which generally rquires a potential class member to opt out of the lawsuit.

In Swales v. KLLM Transport Services, the Fifth Circuit announced a new standard for collective certification that rejected the two-part Lusardi method that courts had previously used. 985 F.3d 430, 439 (5th Cir. 2021).  Under Swales, the new standard directs the district court to “identify, at the outset of the case, what facts and legal considerations will be material to determining whether a group of ‘employees’ is ‘similarly situated.’ And then it should authorize preliminary discovery accordingly.”  Id. at 441.  Once that discovery has concluded, the district court determines whether the proposed collective consists of similarly situated employees and whether merits questions can be answered collectively.  Id. at 442.  

If the district court decides the questions can be answered collectively, then it authorizes notice to be sent to the similarly situated employees.  Id.  Furthermore, the district court may elect to only give notice to certain “subcategories” of employees as opposed to all potential opt-ins, if the district court determines only those within the subcategory are determined to be “similarly situated” after reviewing discovery. Id. at 443.

In determining whether members of a potential collective are “similarly situated” for purposes of a collective action under the FLSA, of which the EPA is part, courts in the Eastern District look at three factors:

“(1) the disparate factual and employment settings of the proposed plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each proposed plaintiff; and (3) fairness and procedural considerations.” Torres v. Chambers Protective Serv., Inc., No. 5:20-CV-212, 2021 WL 3419705, at *3 (N.D. Tex. Aug. 5, 2021). The term “similarly situated” does not mean that the proposed members are “identically situated.” Id. at *4. The court must instead ask whether the plaintiff has “demonstrated similarity among the individual situations.” Segovia v. Fuelco Energy LLC, No. SA-17-CV-1246-JKP, 2021 WL 2187956, at *8 (W.D. Tex. May 28, 2021). This can be done by showing a factual nexus that binds the plaintiff and the potential collective action members as alleged victims of a particular policy or practice. Id. Having some differences between the collective action members “will not preclude a collective action unless they are material to ultimate issues before the trial court.” Id. at *8. 

Roberts v. Baptist Healthcare Sys., LLC, No. 1:20-CV-00092-MAC, 2022 WL 4089819, at *3 (E.D. Tex. Aug. 9, 2022), report and recommendation adopted, No. 1:20-CV-92, 2022 WL 4084420 (E.D. Tex. Sept. 4, 2022).  

Collective actions are important because they incentivize attorneys to take low individual damage cases by allowing the attorneys to pursue multiple claims at once.  My firm has represented employees in collective actions both in and outside of Texas.  We have represented employees both in court and in arbitration. If you believe you are not being paid a minimum wage, not being paid overtime, or have an equal pay claim based on sex, then you should consider talking to an attorney about whether or not you have a case and whether that case can be pursued as a collective action.