by Gaines West, Attorney-at-Law, West, Webb, Allbritton & Gentry
This summer saw a hiring snafu on the A&M main campus in College Station blow up into a national story – and not the kind of story any college or university wants. Unless you were either at the North or South pole all summer (without internet access), you know that the failed attempt to hire an Aggie graduate to head their revived journalism department cost the President of the College Station campus her job. All of this was so unnecessary!
First Lesson: remember that all the equipment which are ‘yours’ because they are loaned to you by your employer, aren’t really yours and you (legally). You should have no expectation of privacy for anything you write on it. This is really simple folks, but yet even this simple principle escaped the notice of a college president. How do I know that? Because former A&M President Katherine Banks wrote, in response to her Interim Dean’s declaration that he didn’t think Dr. McElroy (the sought after new head of journalism) would go public with her problems. ‘Ok, I assume all texts were deleted.’
Second Lesson: don’t ever write a note like this to anyone! What was she thinking? And didn’t she know that deleted texts can be recovered?
Third Lesson: THINK that what you are writing (before writing it) may be spilled across the (digital) pages of newspapers or become the subject of an investigation into you and what you are doing and saying. I cannot stress these lessons too much. What is in your office, what is on your computer, and what is on your phone supplied by your employer is not yours and you cannot expect that what you write will remain private and subject to only your control.
You might think a lot of things, but when you reduce those thoughts to writing on your employers’ equipment, those thoughts now no longer belong just to you. You can have no expectation that they will remain private. It really does pain me to see this happen, but I see it happen over and over again, so I wanted to take this real-world work example to drive this point home.
Lot’s more lessons could be learned from A&M’s failed attempt to hire Dr. McElroy, but I will stop with this ONE lesson: treat your office and the equipment loaned to you by your employer, as theirs. What you put in it and what you write on that equipment, or store on it, is both yours and theirs. You cannot keep your employer from recovering what you are doing in their physical space or recovering what is on their equipment. Be wise about this. If you aren’t, you may have to be just very sorry about your actions and be out of a job!
Something really monumental happened on Friday, August 18, 2023. The Fifth Circuit Court in New Orleans issued an en banc opinion in Hamilton et al. v County of Dallas (meaning all the 5th Circuit judges got to vote on it) that made a major change in employment law. I didn’t see this one coming because for the most part the 5th Circuit has written opinion after opinion siding with employers. Here’s what they wrote: they erased their precedent that favored an employer friendly Title VII discrimination test. Let me unpack this for you. The Fifth Circuit unwound literally decades of precedent that had limited the scope of Title VII discrimination complaints to only those adverse employment actions that constituted an ultimate employment decision. In other words, they have just made it way easier for an employee to succeed on a discrimination or retaliation complaint. Heretofore the 5th Circuit had required that the complained of discrimination/retaliation satisfy a higher standard, that the adverse employment action (commonly referred to as an AEA) involve an ultimate employment decision – like firing the employee. In the past, if it wasn’t that kind of ultimate employment action – like termination - the 5th Circuit always sided with the employer. In this stunning new precedent, ruling of the 5th Circuit has announced that an employee or job applicant only needs to show that they were subjected to workplace bias ‘because of a protected characteristic, with respect to hiring, firing, compensation or the terms, conditions, or privileges of employment.’ Most notably there were no dissents filed to this opinion.
This isn’t the end of this story. There will be more fine tuning of this new direction in the months, if not years, to come. For instance, the Court did not define just what kind of ‘term or condition of employment’ gives rise to a discrimination claim. We are far from any certainty, but the chances for employees successfully complaining of other less job ending conduct constituting illegal discrimination have gone way up! What this means for faculty and staff in colleges and universities, whether public or private, is that more conduct against you may well be determined as illegal and considered to be discrimination (or retaliation) not allowed by law.
I can’t leave this topic though without reminding you that retaliation is a separate claim AFTER a discrimination complaint has been filed with the Texas Workforce Commission – Civil Rights Division (TWC-CRD) or the Equal Employment Opportunity Commission (EEOC). Also, please remember filing with your college HR department complaining about illegal actions taken against you does not preserve your claim. You must file with the TWC-CRD within 180 days of the discrimination, or within 300 days if you are filing with the EEOC to preserve your claim. Also, each act of discrimination must be reported to these agencies separately, either as an initial act of discrimination, or a follow up act of retaliation. So, the main take away regarding what the 5th Circuit just did is just like the Texas weather. The rule of law changes from time to time, so if you don’t like it the way it is now - just wait a while and maybe it will come around and make a change for the better. Speaking of change – I’m ready for fall, how about you? “
“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.”
