Author Archives: Logan Howard

EEOC Sues Corpus Christi Hotel for Pregnancy Discrimination After Pregnant Employee Fired Because She was a “Liability”

On January 25, 2021, the EEOC filed a lawsuit in federal court alleging that Awon Phie LLC d/b/a Holiday Inn Express & Suites violated federal law when it fired an employee because she was pregnant. It is alleged in the lawsuit that a manager at the hotel told the employee that she was a “liability” because of her pregnancy and fired her. If proven, the actions by the hotel violate Title VII of the Civil Rights Act on 1964, which prohibits pregnancy discrimination in the workplace. As one of the EEOC attorneys has been quoted in this case, “[a] pregnant employee who is ready, willing, and able to work has the right to continue to earn a living.”

Pregnant Employees have Legal Rights

With the passage of the Pregnancy Discrimination Act of 1978, Title VII of the Civil Rights Act of 1964 was amended to protect pregnant employees from discrimination in the workplace. The Pregnancy Discrimination Act protects female employees (or applicants) from discrimination or harassment in the workplace on the basis of pregnancy, childbirth, or related medical conditions. If a pregnant employee is willing and able to work, an employer cannot fire that employee or force her to stop working. Furthermore, pregnant employees are protected from harassment by their employer, which could include unwanted comments, jokes, or other behavior that creates a hostile or offensive work environment.

What is the EEOC’s role?

The EEOC is a federal agency that is responsible for investigating allegations of discrimination in employment. Individuals in Texas have 300 days from the date of any discriminatory act to file what is called a Charge of Discrimination with the EEOC. After a Charge of Discrimination has been filed, the EEOC conducts an investigation (lasting 180 days or longer) into the allegations of discrimination. At the conclusion of its investigation, the EEOC has the authority to file a lawsuit in federal court on behalf of the employee (and any similarly situated employees) to enforce the law and prevent any further discrimination. Even if the EEOC does not decide to file a lawsuit, the employee receives a Right to Sue letter from the EEOC that affords the individual the right to file suit in federal court on her behalf.

Do I need an employment lawyer?

While it is not required to have legal representation through the Charge of Discrimination process before the EEOC, it is highly recommended that you seek out an employment lawyer in your area prior to filing (time permitting). An employment lawyer can help focus the allegations on what is most relevant and help navigate through the intricacies of both the law and the EEOC administrative process.

If you have been discriminated against, harassed, or fired while pregnant, or if you have any questions about your legal rights as a pregnant employee under both Texas and federal law, please do not hesitate to contact an employment discrimination lawyer for a free initial consultation.

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Employees with Disabilities During the Pandemic – COVID-19 and the ADA

Employees with disabilities have long known that they are protected under the Americans with Disabilities Act (ADA), including the requirement that employers provide reasonable accommodations. However, during these previously unforeseen times, there have been a lot of questions about how the ADA applies to employees with disabilities during the pandemic, what rights to accommodations employees with disabilities have, and have employer obligations under the ADA changed at all. While this post is meant to provide employees with general guidance on these issues, do not wait to contact an employment attorney in your area if you believe that your rights have been (or continue to be) violated by your employer.

Requests for Reasonable Accommodations during the Pandemic

The requirement that employers provide employees with reasonable accommodations under the ADA has not changed due to the pandemic. Reasonable accommodations may include any adjustment or modification of job duties that enable an employee with a disability to perform the essential functions of his/her job, so long as the accommodation does not create undue hardship for the employer.

It is now well known that certain disabilities place individuals at a heightened risk of serious illness or death from COVID-19. Because of this, employees who suffer from one of these disabilities may need to request a reasonable accommodation to protect themselves from exposure. While this is not an exhaustive list, reasonable accommodations could include

telework
modified job assignments
temporary transfer to a different position,
modified work schedule
using physical barriers
a change in office space to reduce the chance of exposure

Ultimately, as was the case before the pandemic, if an employee believes that he/she needs an accommodation to perform the job, the employee needs to notify the employer and submit the request. An employee and employer must engage in what is called the ‘interactive process’ to figure out what, if any, reasonable accommodations may be appropriate.

Employees’ Right to Privacy

Under the ADA, employers are required to keep employees’ medical information confidential (i.e. store separately from the employee’s personnel file). However, this has been somewhat complicated by the pandemic. For example, what does a supervisor do if he/she discovers that an employee has tested positive for COVID-19? While the supervisor is obligated to keep this medical information confidential, the supervisor is not prevented from reporting the information to the appropriate designated individual (oftentimes HR) so that the company can take proper steps to protect other employees. The ADA also does not prevent an employer from asking the positive employee about who they have come into contact with at work so that the employer can notify those individuals that they may have been in contact with someone who tested positive (without disclosing the identity of the positive employee).

Know Your Rights

Know your rights, stand up for yourself, and get the advice and representation that you need. If you have a disability and need an accommodation (related to the pandemic or otherwise), it is always important that you advocate for yourself. If your employer is not respecting your rights and following the law, speak to an employment attorney who can advocate for you. If you have been fired because of your disability or request for reasonable accommodation, it is imperative that you contact an employment attorney who can pursue any available legal claim and remedies on your behalf.

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NDAs and Settlement Agreements – Will my Settlement Prevent me from Talking?

Although there has been a recent shift away from NDAs (Non-Disclosure Agreements) or confidentiality provisions in settlement agreements related to employment discrimination claims, they remain very prevalent. Most settlement agreements contain language that prevents an employee or former employee from discussing the terms of the settlement or even allegations related to the discrimination or harassment experienced by the employee.

Additionally, settlement agreements oftentimes contain non-disparagement provisions that limit the employee’s ability to make negative comments about the company (or its employees). While these limitations can have certain benefits for both parties, they almost always favor the employer. Ultimately, if a settlement agreement contains an NDA, an employee must weigh his/her desire to speak publicly about what took place against his/her desire to resolve the matter by way of a monetary settlement.

With the #MeToo movement came a push to limit the use of NDAs in settlement agreements related to claims of sexual harassment and sex discrimination. In 2017, a federal tax law went into effect which limited a company’s ability to deduct settlement payments for tax purposes when the agreement contains a non-disclosure provision. The purpose of this law was to restrict a company’s ability to prevent an employee from discussing allegations of sexual harassment publicly. While that is certainly a positive development, there remain concerns that this may have also had the unintended consequence of causing some employers to devalue sexual harassment claims or even discourage employers from settling sexual harassment claims altogether.

Employees must know what they can or cannot talk about if they are going to enter into a settlement agreement with their employer. When you receive a settlement or severance agreement from an employer, it is important that you fully understand your obligations and the impact that each provision will have on you. This is not a situation to play an armchair attorney.

Having an experienced employment lawyer review the agreement before you sign will give you the knowledge to make a fully informed decision that is best for you.

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Should I File an Employment Discrimination Lawsuit?

There are countless criteria that should be considered before filing an employment discrimination lawsuit against your current or former employer. And before making that decision, it is certainly recommended that you speak with an employment lawyer near you. However, some of the issues that you should evaluate prior to making that decision include the following:

Have you filed a charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC)?
Do you have a Right to Sue from the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC)?
What evidence do you have to support your employment discrimination claim?
- Do you have any witnesses?
- Do you have documentation?
- Do you have audio/video recordings?
What are your potential damages?
Can you afford to pursue litigation?

Before filing an employment discrimination lawsuit

Unlike some areas of law that allow individuals to file a lawsuit immediately (e.g. personal injury arising out of an auto accident), an employee who is claiming employment discrimination must first file a charge of discrimination with the Texas Workforce Commission and/or Equal Employment Opportunity Commission (EEOC). This is a prerequisite for filing a lawsuit in state or federal court. Once the charge of discrimination is filed, an investigation will be conducted for a period typically between 6 months and a year before you are issued a Right to Sue. Once the Right to Sue is received, you will have either 60 days (if it is received from the Texas Workforce Commission) or 90 days (if it is received from the EEOC) to file a lawsuit in state or federal court, respectively.

Do I have enough evidence to prove employment discrimination?

Because each and every case is so very different, it is impossible to lay out what evidence is, and is not, sufficient to prove employment discrimination. However, the more evidence of discrimination that you have, the easier it is going to be to prove. The types of evidence that will likely be most helpful are documentary evidence (e.g. emails, memos, notes, etc.), audio/video recordings, and witnesses. You want to evaluate all of your evidence to determine the strengths and weaknesses of your claim(s) before filing suit.

How much is my case worth?

The value of any case is determined based on the specific facts of the claim(s). A significant portion of the damages in an employment discrimination lawsuit is based on the length of employment and income pre and post-termination. Additionally, you can recover emotional distress/mental anguish damages based on the severity of the discriminatory conduct. There are also certain statutory caps on the maximum amount of damages that can be recovered.

How much does an employment discrimination lawsuit cost?

Once again, every case is different, and that includes how much money it costs to successfully pursue an employment discrimination lawsuit. At the very least, you are looking at a filing fee and service of the lawsuit, which is generally in the range of $400-500. After that, the majority of your costs will be in depositions (paying a court reporter and potentially a videographer) and expert witnesses. Deposition costs will typically run between $750-2,000 per deposition but can exceed that if travel is involved. It may be helpful to have an expert witness involved in your case to testify about the financial losses or emotional distress you have suffered as a result of the discriminatory termination. Expert witness fees can vary wildly, but you are generally looking at spending several thousand dollars to retain one. Prior to filing suit, you must determine if the cost of potential litigation is something that you can afford.

At the end of the day, it is always good advice to speak with an employment attorney about your potential claim(s) before deciding to file an employment discrimination lawsuit. Not only is it smart to have an outside opinion, but an employment attorney will be better versed in the current state of the law and which court, if any, is best to file in. Ultimately, you may choose to get multiple consultations from attorneys before determining (a) if you should file an employment discrimination lawsuit and (b) which attorney you will retain to represent you in that lawsuit.

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What Rights Do I Have as a Pregnant Employee in Texas?

During what is oftentimes one of the happiest times in a woman’s life, the workplace can be a very scary place to navigate as a pregnant employee in Texas. Most employees are unaware of what legal rights they do (and don’t) have. One question that may arise is what rights you have while employed and pregnant. Another may be what rights you have to maternity leave following the birth of your child. Under the Pregnancy Discrimination Act (which only applies to employers with 15 or more employees), a company cannot fire, refuse to hire, harass, demote, or take other adverse action against a pregnant employee if the woman’s pregnancy (or related medical condition) was a motivating factor in that decision. Although we are living in the 21^st century, it is still far too common for women to be fired because of pregnancy or their need to take leave for the birth of a child or to care for their newborn. If you or someone you know is being discriminated against because of a pregnancy or birth of a child, it is imperative that you contact a pregnancy discrimination attorney as soon as possible to fully understand and protect your legal rights.

What leave am I entitled to during my pregnancy?

A pregnant employee in Texas must be afforded the same as other non-pregnant employees with respect to leave and other benefits. Likewise, an employer cannot force an employee to take leave because of her pregnancy so long as she is capable of performing her job. If a pregnant employee is not able to perform her job duties as a result of physical limitations resulting from the pregnancy, she must be allowed to take leave on the same terms and conditions as other employees who are similar in their ability or inability to work. Additionally, if a pregnant employee does have to take leave due to a pregnancy-related condition, she must be allowed to return to work to the same extent that other employees on sick or disability leave are allowed to return.

Beyond normal leave and benefits that a pregnant employee should be afforded, a pregnant employee who has an impairment related to her pregnancy may qualify for a reasonable accommodation under the Americans with Disabilities Act (ADA). For example, a company may be required to provide certain equipment for the pregnant employee to allow her to sit while performing job duties that are typically performed while standing. An employer may modify certain workplace policies or work schedules. It is also possible that a pregnant employee may be able to take leave as a reasonable accommodation beyond what the employer would normally provide under its sick leave policy. These are all very fact-specific issues, and the best thing that you can do is reach out to a pregnancy discrimination attorney in your area to discuss your legal rights.

What leave am I entitled to following the birth of my child?

The Family Medical Leave Act (FMLA) allows certain employees who have worked a year or longer for a company with 50 or more employees to take up to 12 weeks of leave for the birth and care of the employee’s newborn (or for the employee’s serious health condition if there are medical complications related to the birth). The FMLA does not require the employer to pay the employee anything for this leave, but a company’s own policy and/or certain short-term disability policies may provide for a certain amount of pay. If a pregnant employee intends to take some or all of the 12 weeks of FMLA protected leave, she must:

Notify the employer in advance of her intention to take the leave and
Fill out and submit any required paperwork.

At the expiration of the employee’s FMLA leave, she must be returned to the same or equivalent position.

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The EEOC Issued a Notice of Right to Sue – Now What?

When an employee in Texas believes that he/she has been discriminated against, he/she must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and/or Texas Workforce Commission (TWC). A charge of discrimination is an administrative prerequisite to being able to file a lawsuit against an employer based on allegations of discrimination (based on sex, race, age (over 40), race, national origin, disability, or religion) and/or retaliation. While it is always advisable to first discuss your legal options with an employment attorney, some individuals choose to forego legal representation during the charge of discrimination investigation process. It is important that you know your legal rights when the EEOC dismisses your charge of discrimination and issues a Notice of Right to Sue.

When can I file a lawsuit?

Before filing a lawsuit against an employer in federal court, you must obtain a Notice of Right to Sue from the EEOC. This Notice of Right to Sue will be provided either at the conclusion of the EEOC investigation or upon your request after at least 180 days have passed from the date your charge of discrimination was filed. Once you receive the Notice of Right to Sue, you have 90 days to file a lawsuit in federal court. If you miss that deadline, you may be prevented from pursuing your claim.

DO NOT request a right to sue from the EEOC unless (a) you are prepared to file a federal lawsuit within 90 days or (b) you have been advised by an attorney to request the right to sue.

Will the EEOC file a lawsuit on my behalf?

While the EEOC can and does occasionally file lawsuits on behalf of employees to enforce the various federal anti-discrimination laws, I would not recommend holding your breath. In 2017, the EEOC filed a total of only 201 lawsuits on behalf of employees across the entire United States. Keep in mind that the EEOC saw a total of 8,827 charges of discrimination filed during 2017 in Texas alone, and a total of 84,254 charges of discrimination filed across the country. So only 0.2% of all charges of discrimination that are filed with the EEOC end up being pursued by the EEOC in a lawsuit against the employer.

Can I file a lawsuit without an attorney?

While you are not legally required to have an attorney representing you to file a lawsuit in federal court, it is a very risky proposition for you to consider filing a lawsuit pro se (i.e. on your own). There are a number of rules and procedural issues that must be adhered to when filing and pursuing an employment discrimination lawsuit. Violations of these rules/policies can result in penalties and/or sanctions against a party, which can include having your lawsuit dismissed or having to pay the other party’s attorneys’ fees or expenses. Having an employment discrimination attorney retained to represent you in litigation can lessen your exposure to these potentially catastrophic results.

If you do not already have an attorney representing you when you receive a Notice of Right to Sue from the EEOC, the first thing you should do is reach out to an employment discrimination attorney in your area to discuss your claim(s) and the potential for filing a lawsuit.

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