Educated Employer - Page 2 of 3 - From Thompson & Horton

Just in Time for Veterans Day, Federal Agencies Provide Military Service Members and Veterans with Guidance on Unlawful Employment Discrimination

Stephanie A. Hamm,

November 11, 2022

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

Melissa A. Mihalick,

November 1, 2022

in: Court Decisions

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?

Amber King,

October 24, 2022

in: Court Decisions, District Policies

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.

EDUC 101: Summer TEA Commissioner Decision Update

Oleg Nudelman,

October 17, 2022

in: TEA Commissioner Decisions

While teachers and administrators enjoyed a well-deserved summer break, Commissioner Morath and the Texas Education Agency’s Office of Hearings and Appeals were busy issuing several important Commissioner’s decisions in employment matters. For this first of our regular series on Commissioner’s decisions, here is a roundup of lessons school districts can learn from this summer’s rulings out of Austin.

Emotional Distress Damages: How Far Does Cummings Reach?

Ryan Newman , Stephanie Hamm,

October 11, 2022

in: Court Decisions

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.

STATS 101: EEOC Filings are Still Down, but Certain Claims are More Popular than Ever

Adam Rothey,

September 30, 2022

in: Litigation

Recent data published by the EEOC shows a continuing downward trend in the number of employment-related charges. For example, EEOC data shows a decline of more than 27,000 charges filed annually in 2021 as compared to the number of charges filed in 2014. There are a number of factors contributing to this decline, including the impact of COVID-19 and the resulting labor shortages and—until recently—the relative ease of finding new employment. As the country continues to recover from the pandemic and face uncertain economic conditions, however, digging a little deeper into the data can reveal a few trends that may help guide educational employers in addressing areas of employment challenges that are certain to continue.

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