Bostock v. Clayton County, U.S. Supreme Court, 590 U.S. ___ (2020)
Important Case-Title VII-Sex Discrimination Based on Sex-Homosexuality or Transgender
Three employers each fired a long-time employee for being homosexual or transgender. Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, which makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. 2000e–2(a)(1). The Eleventh Circuit held that the suit could be dismissed. The Second and Sixth Circuits allowed the claims to proceed. The Supreme Court ruled in favor of the employees holding that an employer violates Title VII when it intentionally fires an individual employee based in part on sex regardless of whether other factors besides the plaintiff’s sex contributed to the decision or whether the employer treated women as a group the same when compared to men as a group. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. It is irrelevant what an employer or others might call the discriminatory practice; that another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from that assigned at birth, might play an important role in the employer’s decision; or that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. The Court rejected arguments that homosexuality and transgender status are distinct concepts from sex and that a stricter causation test should apply because the policies at issue have the same adverse consequences for men and women. Legislative history has no bearing where no ambiguity exists about how Title VII’s terms apply to the facts. Editor’s Note: It remains to be seen how this case affects the Texas Supreme Court’s opinion in Alamo Heights Independent School District v. Clark, 544 S.W.3d 755 (Tex. 2018). In the Clark case involving same-sexual harassment, the court held that harassment might be illegally discriminatory if it is motivated by sexual attraction but the presumption that a harasser is motivated by sexual attraction does not apply in the case of same sex harassment. The court further stated that “[r]egardless of how it might apply in opposite-sex cases, a standard that considers only the sex-specific nature of harassing conduct without regard to motivation is clearly wrong in same-sex cases.” It will be interesting to see if the Texas Supreme Court bows to the U. S. Supreme Court and treats both same-sex and opposite sex discrimination the same now. It appears the dissenting opinion in Clark now has the better side of the argument based on the U.S. Supreme Court’s opinion in Bostock. Stay tuned.
Sandberg v. STMicroelectronics, Inc., No. 05-18-01360-CV, 2020 WL 1809469 (Tex. App.—Dallas, Apr. 9, 2020)
Sabine Pilot Cause of Action-Refusal to Extend Doctrine
The Sabine Pilot doctrine recognizes a wrongful discharge cause of action for an employee discharged because of his refusal to comply with an employer’s instruction to violate the law. The Sabine Pilot cause of action was created in an earlier era of the Texas Supreme Court before control of the court was taken over by the conservatives. After this take over, the Sabine Pilot cause of action appears to have been held in apparent isolation and disdain preventing its extension- a kind of “step-child” and treated as such. The actions of the court of appeals carries out this policy, either by choice, or by deference to the Texas Supreme Court. The plaintiff in this case alleged that the employee was concerned that his employer was preparing to violate the law, and he informed his employer he would not sign documents or commit other acts involved in such a violation. “The question,” the court stated, “is whether an employee’s termination for unilaterally declaring to his employer that he will not violate the law if required to do so by the employer presents a cause of action under Sabine Pilot.” The court rejected this proposed extension of Sabine Pilot. Therefore, Sabine Pilot is limited to cases in which the employer has actually instructed the employee to violate the law. Is it not enough the employer anticipates that an employee will refuse, and discharges the employee based on that expectation. Editors Note: However, courts have held that an employee may assert a Sabine Pilot claim despite the fact that an employer fails to “directly confront an employee and make an affirmative statement that the employee will be terminated if he refuses to perform an illegal act.” See Higginbotham v. Allwaste, Inc., 889 S.W.2d 411, 413 (Tex. App.— Houston [14th Dist.] 1994, writ denied).
Roane v. Dean, No. 03-19-00307-CV, No. 03-19-00352-CV, 2020 WL 2078252 (Tex. App—Austin, Apr. 3, 2020)
TCHRA Preemption of Tort Claims Against Individual Supervisors
The plaintiff sued an individual supervisor for intentional infliction of emotional distress. She did not sue the employer either in tort or under the Texas Commission on Human Rights Act (TCHRA) (possibly because of not having timely filed with the Texas Workforce Comission-Civil Rights Division against the employer in order to invoke the jurisdiction of Chapter 21 Texas Labor Code). The defendant supervisor filed a plea to the jurisdiction arguing that the “gravamen” of the alleged tortious conduct was sexual harassment, and that the tort was therefore superseded by the TCHRA. The trial court denied the plea but the court of appeals reversed. Relying on the Texas Supreme Court’s decision in Creditwatch, Inc. v. Jackson, 157 S.W.3d 814 (Tex. 2005), the majority held that if the TCHRA would supersede a tort claim against the employer, it would also supersede a tort claim against an individual supervisor. There was a dissent. Editor’s Note: My prediction is that the Texas Supreme Court would not rule any differently because this ruling is consistent with the Creditwatch case and the Texas Supreme Court appears to have nothing but disdain for the intentional infliction of emotional distress cause of action.
Stadium Motorcars, LLC v. Singleton, 2019 Tex. App. LEXIS 8985 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
Arbitration-Confirmation or Vacatur Appeal
In a wrongful termination case where the employee claimed he was fired for refusing to perform an illegal act, the trial court and appellate court held that that there was no error by confirming the arbitration award for the employee under Tex. Civ. Prac. & Rem. Code Ann. § 171.087 because he presented a Sabine Pilot claim as an exception to the employment-at-will doctrine. The court of appeals stated that judicial review of arbitration awards is extraordinarily narrow because Texas law favors the arbitration of disputes. In reviewing an arbitration award, courts indulge every reasonable presumption to uphold an award, and none against it. The review of an arbitration award is centered on the integrity of the process, not the propriety of the result. When a court reviews an arbitration award under the Texas Arbitration Act, a court shall confirm the arbitration award unless grounds are offered for vacating, modifying, or correcting an award under Tex. Civ. Prac. & Rem. Code Ann. §§ 171.088, 171.091, or § 171.087. The Court stated that the Texas Supreme Court has concluded that the statutory text could not be plainer: the trial court shall confirm an award unless vacatur is required under one of the enumerated grounds in Tex. Civ. Prac. & Rem. Code Ann. §171.088. An arbitrator’s manifest disregard of the law is not a ground for vacatur enumerated in §171.088, and the Act leaves no room for courts to expand on those grounds.
Soto Fernandez v. Trees, Inc., Cause no. 18-12239, (11th Cir. June 9, 2020)
National Origin Discrimination & Hostile Work Environment
Plaintiff appealed the district court’s grant of summary judgment in Trees’s favor on employee’s hostile work environment and national origin discrimination claims under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit affirmed the district court’s grant of summary judgment for Trees on plaintiff’s national origin discrimination claim, holding that the claim fails as a matter of law where the supervisor’s statement, although reprehensible, was not direct evidence that plaintiff was fired because of his national origin. The court reversed the district court’s grant of summary judgment for Trees on the hostile work environment claim based on national origin, holding that plaintiff provided evidence sufficient to raise a material issue of fact as to whether the harassment was objectively severe or pervasive. In this case, plaintiff provided ample evidence that the harassment he faced was frequent; a reasonable jury could conclude that the harassment was sufficiently severe; the supervisor’s conduct was sufficiently humiliating to support a hostile work environment claim; and, although more attenuated than typical interference-with-job-performance arguments, the court could not say on this record that plaintiff’s on-the-job suicide attempt was wholly unrelated to his job performance (Soto’s remarks repeatedly targeted a protected group with vulgar and derogatory language and continued unabated after complaints by Fernandez and his co-workers.)
Eshleman v. Patrick Industries Inc., Docket No. 19-1403, (3d Cir., May 29, 2020)
ADA- Regarded As-Transitory and Minor Exception-Burden of Proof
Eshleman took medical leave to undergo surgery to remove a nodule from his lung. After two months of medical leave, Eshleman returned to work without restrictions. Six weeks later, Eshleman suffered a severe respiratory infection from January 27-31, 2016 (spanning a weekend). His supervisor approved two vacation days. With his physician’s approval, Eshleman returned to work in his full capacity on February 1. At the end of his second day back, Patrick fired him. Eshleman sued, alleging that he was fired because he was regarded as disabled, in violation of the Americans with Disabilities Act and that the shifting reasons for his termination were a pretext for illegal disability discrimination. The district court dismissed, holding that the ADA did not cover Eshleman’s “regarded as” claim because his impairment lasted less than six months and was “transitory and minor.” The Third Circuit reversed holding that the district court did not conduct an independent analysis into whether Eshleman’s impairment was minor, apart from whether it was transitory. Eshleman conceded that his actual impairments—surgery to remove a nodule from his lung and a severe upper respiratory infection—were transitory because they lasted less than six months, but he argued that the District Court was nonetheless required to separately evaluate whether his impairment was “minor.” The appellate court agreed. In carving out “transitory and minor” impairments from “regarded as” claims, the ADA specifically defines “transitory” as “an impairment with an actual or expected duration of 6 months or less.”The ADA does not, however, apply this definition to minor. While the statute is silent on the meaning of “minor,” the ADA regulations clearly state that an employer must establish that the perceived impairment is objectively both transitory and minor.29 C.F.R. § 1630.15(f) states: “To establish this defense, a covered entity must demonstrate that the impairment is both ‘transitory’ and ‘minor.’ Whether the impairment at issue is or would be ‘transitory and minor’ is to be determined objectively.”The regulations, like the statute, define “transitory” as “lasting or expected to last six months or less” but similarly do not extend this definition to “minor.” In addition, the regulations refer to the time limitation as “[t]he six-month ‘transitory’ part of the ‘transitory and minor’ exception,” making absolutely clear the distinction between “transitory” and “minor.”It is therefore clear under the ADA regulations that “transitory” is just one part of the two prong “transitory and minor” exception. Further the court stated that, “According to the EEOC, the minor back injury lasting longer than six months is not “transitory and minor” because it meets only the “minor” prong of the exception but is not transitory. The converse must also be true; an impairment that is transitory because it lasts less than six months but is objectively non-minor must also fall outside the “transitory and minor” exception.”
Knox v. Roper Pump Co., No.18-11756 (11th Cir. April 30, 2020)
Plaintiff filed suit against Roper Pump alleging a claim for retaliation and race discrimination in violation of Title VII. The district court granted summary judgment to defendants. The Eleventh Circuit reversed the district court’s grant of summary judgment to Roper Pump on plaintiff’s retaliation claim, holding that there was enough evidence in the record, when taken in a light most favorable to plaintiff, to support his claim that Roper Pump responded to a claim of race discrimination by conditioning continued employment on signing a release of claims and firing plaintiff for refusing to sign the release. However, the court affirmed the district court’s grant of summary judgment as to the race discrimination claim, agreeing with the trial court that plaintiff failed to proffer comparators that were similar in all material respects.