Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

This blog's humble author is quoted in a Law360 story today about the dubious distinction Texas has as the state responsible for more EEOC Charge filings than any other state:

"More federal workplace discrimination charges were filed in Texas than in any other state in 2011, with 10 percent of all charges nationwide lodged there, according to state-by-state data released by the U.S. Equal Employment Opportunity Commission on Monday.

The EEOC received a record 99,947 charges of discrimination during the 2011 fiscal year, which ended Sept. 30, and of those, 9,952 charges were brought in Texas, the agency said.

* * * * 

While the sheer size of Texas' population is most likely a factor in the state's position as the one with the most charges, it is not the only factor, attorneys say. Population size alone can't account for why Texas' number would trump that of another populous state like California, attorneys told Law360.

“Many states like California have a robust state-level agency that provides protections for workers, but in Texas the agency provides very little, so more of that work has to be shouldered by the federal government rather than the state,” said San Antonio-based attorney Christopher J. McKinney of The McKinney Law Firm PC, who represents employees and select employers.

Management-side attorney Ron Chapman Jr. of Ogletree Deakins Nash Smoak & Stewart PC agreed that the state agencies' activity level likely accounted for the number of charges being higher in Texas than in California. ..."

 Read the entire story at Law360.

The statistics really are quite damning for Texas. Texas accounted for a full 10% of all national EEOC charge filings, and 15% of the country’s religion and national origin charges. That's pretty deplorable. 

Followup: 

Link to the EEOC Chart of Charge Filings by State

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 A federal judge in Houston has the employment law community up in arms over his ruling that “firing someone because of lactation or breast-pumping is not sex discrimination.”  The ruling in EEOC v. Houston Funding seems to fly in the face of the obvious fact that treating a woman different than men due to concerns about lactation is clearly discriminating on the basis of sex.  The Court, apparently not recognizing this obvious fact, stated its opinion succinctly as follows:

"She [the plaintiff] gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination."

This statement is, of course, absurd.  Current law clearly protects pregnant women from being fired simply because they are having a child, and also protects against discrimintion against "pregnancy-related conditions."  How a court can come to the conclusion that lactation is not pregnancy-related simply boggles the mind.

Virtually every legal commentator and blogger that I have seen discuss the case has called out this decision as being clearly wrong.  Some are already calling for Congress to take up the issue and "fix it."  However, my friend, defense lawyer and fellow blogger, John Hyman makes the excellent point that while this case is obviously incorrect, it is likely just an aberration by a judge that simply got it wrong this time.  He is correct of course.  Calls for remedial legislation may be a bit premature at this point. This bad decision may very well be corrected on appeal.  Additionally, this decision will have no precedential effect as this is only a trial court ruling and it is very unlikely to be followed by other courts around the country.  The vast majority of judges are likely to understand that lactation is, in fact, pregnancy related and that discrimination based on lactation is sex discrimination because [NEWS FLASH] only women can do it.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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 I am preparing for a trial next month in a case in which my client's employer fired her while she was out on maternity leave.  So I have been spending some time this week reading and exploring the web to find out what people are thinking and talking about right now with regards to pregnancy and work. 

Came across an interview with Sharon Lerner, the author of "The War on Moms."  She has an interesting take on the state of maternity leave laws in the U.S.  Her focus is not so much on the "choice" of continuing work or staying home after having a baby.  Instead she focuses on the practical context in which most women have to make that choice: economic pressure, social expectations, etc. and she reaches the conclusion that many. . . or even most women don't feel like they have much of a choice at all.  

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The Equal Employment Opportunity Commission is looking at getting an extra $23 million dollars to help tackle the growing backlog of cases at the at the agency. 

According to the National Law Journal, the 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints. 

The article reports that the resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination. 

Meanwhile, the agency has watched staffing levels shrink 25% in recent years under the last administration, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators. 

The EEOC has always had a chronic problem with not being adequately funded.  While this new funding won't totally rectify the situation, the move should be welcomed by both employers and employees.  Regardless of outcome, it is in everyone's best interest for EEOC investigations to be resolved in as short a time frame as possible.  

Read the story here.

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Prior to Congress' recent amendments to the ADA, few if any lawyers would have given serious consideration to using the ADA as an avenue to sue for a pregnancy-related condition instead of bringing a traditional pregnancy discrimination claim pursuant to Title VII.  The fact that the EEOC has recently filed a lawsuit seeking to do just that speaks volumes about the how much stronger the ADA is perceived to be by practitioners following the recent amendments.  

The EEOC’s lawsuit charges that D.R. Horton (NYSE:DHI) refused to accommodate a female project manager in Kirkland, Wash., when it denied her additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

The EEOC, filing suit on the employee's behalf, has apparently determined that it can bring a stronger case under the new and improved ADA than it could by utilizing Title VII's protections against pregnancy discrimination.  This will be an interesting case to watch.  

According to the company's website, D.R. Horton is the biggest home builder in the United States and a Fortune 500 company with operations in 28 states and headquarters in Fort Worth, Texas.

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The University of Phoenix has agreed to pay a former employee $32,500 as part of a settlement of a discrimination claim that has been made public by the EEOC. The University settled the discrimination claim brought by Latrish Elaine Tarhini, who worked as enrollment counselor at the school’s Houston campus.

The EEOC and Tarhini claimed that University of Phoenix management said she would not be in line for a promotion because she made an earlier pregnancy discrimination charge against the Phoenix-based company and its parent, Apollo Group Inc. The EEOC filed suit against UOP in September 2008 in federal court, claiming the for-profit university violated retaliation statutes of the Civil Rights Act of 1964. It violates federal law to discriminate against workers who previously filed discrimination claims against their employers.

The University of Phoenix is a subsidiary of Phoenix-based Apollo Group Inc. (Nasdaq: APOL). It has 397,000 students enrolled in its online and campus classes. The school has 200 campuses worldwide.
 

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