by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
UT-Austin recently announced furloughs and layoffs were coming because of COVID-19. More colleges and universities will soon follow their lead. The “flip of the coin” for all our social distancing efforts to flatten the curve is predictably: stressed out academic budgets. In my 30+ years of practice in Higher Education Law I have seen furloughs and Reductions in Force (RIFs), for a number of reasons. Some were tied to our legislature not adequately funding higher education needs. Other reasons have included natural disasters like hurricanes, or national financial woes – that for all intents and purposes never even touched the Texas economy. Nonetheless, all these “happenings” urged higher education leaders to trim their ranks of professors and staff. Instead, each time our academic leaders rolled out tried and true ways to “cut out deadwood,” as they sometime would say, but what they were really doing was covering up actions that amounted to discriminatory animus. Presidents, Deans and Department Heads used budgetary excuses to covertly “thin” the resistance to university “politics,” eliminate diversity and silence critics of their favored academic programming. That may sound cynical, but unfortunately this is exactly what has happened each time necessary budgetary constraints have been announced. What was meant as a direction to simply save money turned out to be taking actions to justify any number of illegal acts.
Now, don’t get me wrong, there are legitimate furloughs and RIFs that can happen as a result of any number of circumstances that can occur. BUT, always question the true motive behind that furlough or RIF. Are you being discharged due to your age (and the fact that you have a high salary – that is needed to grow a younger more technically savvy Department)? Are you the only female professor in a Department of males and you happen to be the only one furloughed? Before COVID-19 were you being singled out by your Dean for “wearing your religious beliefs on your sleeve” too much? Back at the first of 2020, were you complaining that your college lacked adequate diversity? Now do you get the picture? Like Paul Harvey used to say (uh oh – I just gave away my age) - “Now, you know the rest of the story!” (You can google Paul Harvey to help you understand my last attribution – if you are under the age of 50.)
So, what do you do if you find yourself being the target of disguised animus? First, you need to determine if what has happened to you is what is called an Adverse Employment Action (AEA). Not every action taken against you that affects your job is an AEA. And if it’s not an AEA there probably isn’t much you can do about what has happened to you. If what happened to you is an AEA – you do have some legal options, which I will explain later. Now, initially please understand that lots of case law has developed describing what is, and what is not, an AEA. For the purpose of my warnings to you here in this article, space limitations won’t allow me the full range of discussions necessary to describe the nuances of the line that cannot be crossed – that would make an employment action against you an AEA. For the ease of illustration let’s assume you have lost your job, or your salary has been cut substantially, or you have been furloughed for a year, not just weeks. And you honestly believe the action taken against you is not because of COVID-19 and the ensuing budget crises, but rather it’s because you have been a thorn in the side of administration because of your gender, national origin, color of your skin, religious beliefs, your age, and so on. All these actions could qualify as an AEA.
So legally what can you do? I have written about this in past articles for TACT. Let me quickly summarize: we are a dual filing state so if you file a complaint with the Texas Workforce Commission – Civil Rights Division (TWC-CRD) within 180 days of the complained of discriminatory AEA, you will automatically be filing your complaint also with the Equal Employment Opportunity Commission (EEOC). If you miss the 180 deadline, you can file only with the EEOC within 300 days of the complained of discrimination. What happens next? The TWC-CRD and EEOC will investigate your claim. In most all claims the investigation will result in either, or both, agencies, issuing you a Right to Sue letter. To keep your claim active you must then file suit in a state court (for a TWC-CRD claim) within 60 days, or a federal court (for a EEOC claim) within 90 days. Regardless of how long the investigation lasts, for claims filed with the TWC-CRD you must file your lawsuit no later than 2 years for the complained of discrimination. That isn’t so for an EEOC claim. Also, if you are retaliated against for filing your discrimination complaint – because another AEA is taken against you – a new 180/300 day time clock starts again. To perfect a retaliation claim you must file with the TWC-CRD or EEOC. Be especially alert to the fact that filing your claim with Human Resources (HR) at your college or university will NOT perfect your claim. To make a claim you MUST file with the state (TWC-CRD) or the federal agency (EEOC) overseeing claims of discrimination. No matter what HR tells you, or writes you, the ONLY way to perfect your claim is to file it with one of these state or federal agencies, and follow it up with a lawsuit when you are given a Right to Sue letter. A lawsuit can be financially ruinous – if it isn’t settled. Many claims like these, however, require fully trial before a jury – if the judge allows the case to proceed at all.
The harder question to answer is: “…should I file a claim?”
The only way to perfect your claim is to do it as I have outlined. Know, however, that if you do file the claim, and perhaps one for retaliation (since that often happens and you need to know the law views a claim of retaliation more favorably than even the underlying claim of discrimination), you have not done an act that will endear you to your college or university. You won’t be considered as a “team player.” Plus, the discipline you have chosen is usually made up of professionals all over the country (even internationally) who know each other fairly well. And, it is often a fairly small circle of like-minded academics who keep up with each other through scholarly works and service. This means that if the filing of your complaint leads you to look for another job, sometimes, not always, the fact that you have complained against your current employer can limit your opportunities elsewhere. Should it have this effect? No, it shouldn’t at all. But can it? Yes, it can. For these reasons you need the help of a professional to sort out with you what your options truly are and which course of action is right for you.
An Adverse Employment Action is a serious action taken against you. Your response to it is equally as serious with many consequences, some intended, and some not. Discrimination is never justified – but it is often covered up.We say it is simply covered up by another reason – a pretext to the real reason. COVID-19 is a serious illness – but dealing with it can simply be a mere pretext to cover up more sinister plans. The Ides of March have passed us by in 2020 – but the wary need not yet rest!”
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”