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=09=09=09=09Littler Mendelson


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[IMAGE]2001National Employer  Conference



[IMAGE]2001Texas  Employer
Conferences
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Dallas?-  September  25
Cityplace Conference Center, Dallas
For more information  contact:
Barbara Kuhlke
214.880.8110
?
Houston?-  October?30
Four  Seasons Hotel,?Houston
For more information  contact:
Lisha Stuckey
713.652.4726?

?[IMAGE]

?
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=09=09=09
=09=09=09[IMAGE]
=09=09=09
=09=09=09
=09=09=09
=09=09=09
=09=09=09
=09=09=09Littler Mendelson
=09=09=09
=09=09=09
=09=09=09Texas  Supreme Court Lowers Plaintiff=01,s
=09=09=09Burden of Proof in State  Discrimination Law Claims
=09=09=09=20
=09=09=09
=09=09=09Suggestions for  Avoiding Litigation
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=09=09=09
=09=09=09In our previous  Littler E-Lert,  "Emerging Trends: Less Pretrial =
Dismissals=20
of Employment Suits  and More Trials," we discussed the likelihood that=20
federal  courts will be more inclined to let juries decide employment =20
discrimination cases. Based on a recent Texas Supreme Court  case, Quantum=
=20
Chemical Corp. v. Toennies, Texas  employers should anticipate the same tre=
nd=20
in employment cases  arising under the Texas Commission on Human Rights Act=
=20
(TCHRA)  in Texas state courts.=20
=09=09=09
=09=09=09Ralf Toennies worked  for Quantum Chemical as an engineer. A few m=
onths after=20
he  began to report to a new supervisor, his performance reviews  changed=
=20
from being satisfactory to "below expectations." After  Quantum fired=20
Toennies for poor performance, Toennies sued  Quantum, alleging that he was=
=20
the victim of age  discrimination. At trial (where the jury found no =20
discrimination), Toennies did not introduce any direct  evidence of age=20
discrimination. Instead, he attempted to prove  discrimination by=20
establishing that the employer=01,s reason for  his termination - poor=20
performance - was false or a pretext  for discrimination. Some of the=20
co-workers called to testify  at trial stated that Toennies was "diligent"=
=20
and "very  competent." The Texas Supreme Court held that this testimony  an=
d=20
his prior satisfactory performance appraisals, which  contradicted the=20
employer=01,s explanation that Toennies was a  poor performer, was enough t=
o=20
"permit the trier of fact to  find that the employer was actually motivated=
=20
by  discrimination." The Court remanded the case for  another trial with a=
=20
new set of jury instructions to assess  whether the employer's decision was=
=20
motivated by Toennies'  age.
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=09=09=09
=09=09=09
=09=09=09In its analysis of  the case, the Court held that the question the=
 jury=20
should  answer is whether the plaintiff=01,s protected status - age,  race,=
 sex,=20
etc. - "was a motivating factor" for the employment  decision. The=20
plaintiff-employee does not have to prove that  his or her protected status=
=20
was the "sole" factor or the  "determining" factor in the decision; instead=
,=20
if the jury  determines that the protected status "was a motivating  factor=
,"=20
then the jury may decide that the plaintiff was the  victim of illegal=20
discrimination.=20
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=09=09=09
=09=09=09
=09=09=09While this merely may  seem to be only a difference in verbiage, t=
he shift=20
is  significant. The "motivating factor" standard is much  different than=
=20
proving that "but for" the protected status,  the employer would not have=
=20
fired the employee. The practical  effect of the Court's decision is to=20
increase the burden on  the employer to show that it would have made the=20
adverse  employment decision regardless of the employee's protected  status=
.=20
This decision will make summary judgment in an  employment case even more=
=20
difficult to obtain in state court.  Even if a supervisor does not have an=
=20
illegal motive for the  termination, if there is a scintilla of evidence th=
at=20
casts  doubt on the reason why the employee was terminated, the  employer=
=01,s=20
fate may be in the hands of the jury.=20
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=09=09=09
=09=09=09
=09=09=09Accordingly,  before making a termination or other adverse employm=
ent =20
decision, we recommend  that employers?perform an exit interview with two=
=20
persons  (other than the supervisor) present to ascertain if the  employee=
=20
has any discrimination concerns. Consider having the  employee sign an=20
acknowledgment documenting the topics  discussed in the exit interview. If=
=20
the employee alleges  disparate treatment, the termination should be put on=
 =20
administrative hold until the issues have been investigated.  The employee=
=20
need not be reinstated, but the termination  should not be made final until=
=20
the investigation is completed.  Review termination decisions with counsel,=
=20
if necessary, to  assess the litigation risks.? Finally, implement =20
procedures to prevent hasty, unauthorized termination  decisions.
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=09=09=09
=09=09=09
=09=09=09In addition to  preventive measures, employers should also examine=
 all =20
pleadings, affirmative defenses, and jury charges in pending  TCHRA cases t=
o=20
be certain that it has raised all defensive  theories. For example, an=20
employer may reduce damages if the  employer can establish that it would ha=
ve=20
made the same  adverse employment decision regardless of the employee's =20
protected status. Each lawsuit should be reviewed on  case-by-case basis to=
=20
determine whether to raise that defense. =20
=09=09=09
=09=09=09
=09=09=09*********************??
=09=09=09
=09=09=09?Texas  Employment Lawyers of
=09=09=09Littler Mendelson,  P.C.
=09=09=09
=09=09=09????????????Dallas Office?????????????????????Houston Office
=09=09=09???????????  (214) 880-8100?????????????????  (713) 951-9400
=09=09=09
=09=09=09Littler Texas E-LertTM is published  by Littler Mendelson in order=
 to?provide=20
our Texas  clients and employers with the latest developments in  employmen=
t=20
law.?  It is designed to provide  accurate?information on?developing  trend=
s=20
or?events for employers to consider in keeping  abreast of changes in the=
=20
law.??Littler Texas  E-LertTM?does not  attempt to offer solutions to=20
individual?situations or  cases. ,??2001  Littler Mendelson. All rights=20
reserved.?
=09=09=09
=09=09=09If you have  received this electronic notification in error, or no=
 longer =20
wish to?receive further?electronic notifications  of?this type from=20
Littler?Mendelson, please notify  Suzy?Varner?to have?your  name?removed.?
=09=09=09
=09=09=09
=09=09=09=09
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