Michael P. Maslanka 2017-12-20 05:23:14
The biggest news in employment law was the en banc decision by the 7th Circuit Court of Appeals in Hively v. Ivy Tech Community College. The decision: sexual orientation is a protected classification under Title VII of the Civil Rights Act of 1964. Why? Because when you take an adverse employment action against a man or a woman because he or she is in a same-sex relationship, you are taking an action because of the employee’s sex. The Texas Supreme Court is currently considering whether the Texas Labor Code prohibits same-sex harassment. The court conducted oral argument in September. The U.S. Supreme Court emphatically said “yes” to this question; it is unlikely that the Texas Supreme Court will follow a different path. Keep a lookout for the decision in Clark v. Alamo Heights Independent School District.1 In Exxon Mobil Corp. v. Rincones,2 the court determined that compelled defamation is not a claim in Texas, there is no protected activity and thus no retaliation claim when an employee (here: Hispanic) asks a supervisor why another employee (here: white) was treated differently than he was, and for a plaintiff to prove unlawful discrimination through disparate treatment, the plaintiff must establish that the comparator had the same job responsibilities, supervisors, capabilities, and disciplinary records and that there were no mitigating factors for the employees to be treated differently. In Horizon Health Corp. v. Acadia Healthcare, the court ruled on whether evidence supported the damages award for lost profits. The court determined that concrete evidence is needed to base these assumptions. Non-competes continue to be hot with two major developments. The 3rd Court of Appeals in Austin dismissed a cookie-cutter suit for breach of a non-compete based on the defendant’s assertion that the lawsuit violated the Texas Citizens Participation Act, which prohibits a lawsuit against a citizen who seeks to exercise the right of free speech and association. The defendants in Elite Auto Body et al. v. Autocraft Bodywerks framed their leaving one company to set up another as engaging in freedom of speech and association and won. Finally, an important case from the 14th Court of Appeals in Houston—employee claw back provisions are a restraint of trade and thus are an invalid non-compete. Kelley Rieves v. Buc-ee’s Ltd. was a victory for employees and for competition. Notes 1) Case No. 16-0244. 2) 520 S.W. 3d 572 ( Tex. 2017). MICHAEL P. MASLANKA is an assistant professor of law at UNT Dallas College of Law and is publishing two books this year, Maslanka’s Field Guide to Texas Employment Law and Learning Employment Law, of which he is a co-author.
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