LEGAL 101: The Standard for Title VII Religious Accommodations May Be Changing, and Every Employer Should be Paying Attention

It’s no secret that the current majority on the United States Supreme Court is focused on expanding certain religious liberties.

In Kennedy v. Bremerton School District, the Court significantly expanded religious freedoms in the First Amendment context when it held that a school district could not discipline a football coach for publicly engaging in prayer on the football field immediately after games.  The Court’s opinion rejected decades’ worth of cases that had attempted to balance the competing rights secured by the Free Exercise Clause and the Establishment Clause, and also demonstrated the majority’s willingness to cherry-pick the facts of a case when analyzing religious freedoms.

Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough

On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims.  In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct.  Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken.  Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.

Misbehaving Teachers: Do We Really Have to Pay Them?

While we hope it never happens, sooner or later you may be faced with a situation in which a teacher, or other Chapter 21 contract employee, engages in behavior that warrants the employee being placed on administrative leave. Most school districts have adopted Board Policy DFBA (Local), which allows a term contract employee to be suspended with pay and placed on administrative leave by the Superintendent during an investigation of alleged misconduct by the employee or at any time the Superintendent determines that the district’s best interest will be served by the suspension. Often, however, it is hard for administrators, employees, or others to understand why the school must continue to pay a misbehaving employee. Under § 21.211 of the Texas Education Code, an employee who is under a Chapter 21 contract must be paid while on administrative leave unless the Board of Trustees has determined good cause exists to suspend the employee without pay pending discharge or in lieu of termination. This provision has been interpreted by the Commissioner to require districts to follow the termination procedures prior to suspending without pay. What this means in practical terms is that most school districts do not seek to suspend without pay due to this procedural burden and instead move forward with either the termination or nonrenewal process if it is determined that the employee has engaged in the misconduct. This often results in the district having to pay the employee for a lengthy amount of time while the legal processes are pursued. Recently, this process has been challenged and districts have attempted to place a Chapter 21 employee on leave without pay prior to the completion of a hearing. So far, districts have been unsuccessful in their attempts.

Emotional Distress Damages: How Far Does Cummings Reach?

Earlier this year, the United States Supreme Court held in Cummings v. Premier Rehab Keller, P.L.L.C. that emotional distress damages are not recoverable in private actions brought to enforce Spending Clause statutes.  After acknowledging that “Congress has broad power under the Spending Clause of the Constitution to set terms on which it disburses federal funds”—including by conditioning an offer of federal funds on a recipient’s promise not to discriminate—the Court explained that Spending Clause legislation “is much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions.”  The Court then held that plaintiffs cannot recover emotional distress damages for violations of Spending Clause statutes because emotional distress damages are not generally compensable in contract law, and because funding recipients lacked “clear notice” that accepting federal funds would subject them to emotional distress damages in private actions brought to enforce Spending Clause statutes.

So, the Legislature Has Waived Your Governmental Immunity . . . Or Has It?

As political subdivisions of the state, Texas school districts and community colleges are generally immune from claims absent an express legislative waiver. Although certain statutes, including the Texas Whistleblower Act and the Texas Commission on Human Rights Act (“TCHRA”), do contemplate the waiver of governmental immunity, it is important to remember that they do so only to the extent that the plaintiff has asserted a valid claim. This means that a school district or community college sued under these statutes may be able to bring the lawsuit to an early end by filing a plea to the jurisdiction arguing that the plaintiff has not alleged (or cannot prove) the elements of their claim, or that they failed to strictly comply with any statutory prerequisites.

A recent opinion from the Austin Court of Appeals rendered judgment dismissing the plaintiff’s claims in just such a case. Austin Indep. Sch. Dist. v. Anderson, No. 03-21-00286-CV, 2022 WL 3649357 (Tex. App.—Austin, Aug. 25, 2022, no pet. h.).  School districts and community colleges should take note of this opinion for three reasons.