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