On January 24, 2023, the Equal Employment Opportunity Commission released updated guidance on how the Americans with Disabilities Act applies to job applicants and employees with hearing disabilities. The Q&A resource comes on the heels of the EEOC’s announcement of two settlements—one for $44,250 and the other for $180,000—with two employers accused of adverse employment actions against deaf individuals in violation of the ADA. Although the EEOC guidance does not contain new legal mandates, it is an important reminder to educational employers of how the agency will apply existing legal standards in cases involving individuals with hearing disabilities. Employers should review the guidance and their policies, procedures, and practices to mitigate the risk of challenges of employment discrimination by applicants and employees with hearing disabilities. The following is a summary of the major points from the guidance that employers should know.
The Fifth Circuit Court of Appeals could soon broaden the scope of employment actions that may serve as grounds allowing an employee to file a discrimination claim. Currently, Fifth Circuit precedent requires plaintiffs to show they experienced a discriminatory ultimate employment decision, such as being hired, granted leave, discharged, promoted, or compensation issues. Those who claim they suffered other discriminatory conduct that falls short of the “ultimate” action bar cannot pursue a discrimination claim. The Fifth Circuit, however, may be in the process of reconsidering and eliminating that requirement.
Federal law under Title VII and the Age Discrimination in Employment Act (ADEA)—as well as parallel Texas state anti-discrimination law—prohibits employers from discriminating against any person with respect to their compensation or the “terms, conditions, or privileges” of their employment on the basis of the employee’s race, color, religion, sex, age, or national origin. The Fifth Circuit’s decisions—unlike most other federal courts nationwide—have limited the availability of discrimination claims to circumstances when an employee experiences an “adverse employment action” that constitutes an “ultimate employment decision.” In other words, Fifth Circuit precedent strictly defines and limits the types of events that alter the “terms, conditions, or privileges” of employment. The Court has repeatedly held that “ultimate employment decisions” only include events such as hiring, granting leave, discharging, promoting, or compensation. A plaintiff who has not experienced one of these adverse employment actions cannot bring a discrimination claim in Texas federal or state courts.
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.
The Great Pronoun Debate: Can Public Schools Require Employees to Use the Pronouns with Which Students Identify?
Schools and universities have struggled over the last several years with the question of whether students have a protected right to use gender-based pronouns with which they identify, but which differ from the pronouns associated with their birth gender. A subsequent, and sometimes more difficult question, is assuming that students do, can schools require teachers and other employees to refer to students by those gender-identity pronouns, particularly when the employee claims that acknowledging a student’s “change” in gender conflicts with the employee’s religious beliefs? Can a school fire a teacher who insists on using the old pronouns?
Just in Time for Veterans Day, Federal Agencies Provide Military Service Members and Veterans with Guidance on Unlawful Employment Discrimination
On November 10, 2022, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights Division jointly released a comprehensive resource document detailing federal laws and other authorities that specifically protect service members and veterans from workplace discrimination. In its press release, the EEOC described the jointly authored “Protections Against Employment Discrimination for Service Members and Veterans” as the first-of-its-kind single publication intended to “help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated.”
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.