USA – TEXAS Law and Practice Contributed by: Alana Ackels and Katie Beaird, Bell Nunnally & Martin
• ensuring the agreement is clear and understand - able; • ensuring the agreement refers to the Age Discrimi - nation in Employment Act and the employee’s right to waive their claims under it; • advising the employee to consult with a lawyer before signing; and • providing at least 21 days (45 days if a group ter - mination) before signing and seven days to revoke their signature after signing. If it is a group termination, employers must provide employees over the age of 40 included in the group termination with information about the factors that determine eligibility, the ages and job titles of employ - ees who were laid off, and the ages and job titles of employees who were not laid off. 7.5 Protected Categories of Employee Applicants, employees and former employees are protected from employment discrimination based on: • race; • colour; • religion; • sex (including pregnancy, sexual orientation or gender identity); • national origin; • age (40 or older); • disability; and • genetic information (including family medical his - tory). Such protected classification cannot be used when determining any term or condition of employment, including hiring, promotion, pay rate and termination. Texas law provides that if the same person that hired the employee is the decision-maker with regard to the termination, there is a presumption that no discrimina - tion occurred – the reasoning being that the choice to hire the person shows no animus towards their pro - tected class. Of course, this presumption would not apply if the employee’s inclusion in a protected cat - egory begins while in employment, such as becoming pregnant, turning 40, or developing a disability.
In recent years, there has been an increase in claims alleging “reverse discrimination” filed by non-minority employees, claiming a minority group or employee is getting preferential treatment and that the non-minor - ity is thereby being discriminated against. Thus, it is critical for an employer to ensure that its policies with regard to hiring, promotion, pay rates, discipline and terminations are applied in a consistent manner with - out regard for such protected classes. 8. Disputes 8.1 Wrongful Dismissal Wrongful termination claims are typically split into two groups: • wrongful termination in breach of an employment agreement that limits the employer’s ability to dis - miss the employee except for certain reasons; or • wrongfully dismissing an employee for an unlawful reason, such as discrimination or retaliation. Contractual Claims When an employer chooses to enter into an employ - ment agreement that sets out a specific term of employment and the circumstances under which the employee and employer can end the relationship, dismissal is typically referred to as termination “for cause”. In such situations, disputes arise concerning: • whether proper cause was present to end the employment; • whether the terminating party followed all the req - uisite steps to terminate the employment; and/or • whether any severance is required. These disputes are highly variable depending on the contract language, including the remedies set out in the agreement. The main remedy is typically the “benefit of the bargain”, or what the party would have received had the breach not occurred. Additionally, in some situations, the prevailing party will be entitled to
their attorney’s fees incurred. Discrimination and Retaliation
Unlike contractual reasons, most employees in Texas have the right to not be terminated from their employ -
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