DEVELOPMENTS IN EMPLOYMENT LAW

1. AMERICANS WITH DISABILITIES ACT 1
   1. OVERVIEW OF THE ACT 1
      1. General Background 1
      2. Title I--Employment 1
      3. Title II--Public Services 7
      4. Title III--Public Accommodations and Services Operated by Private Entities 8
      5. Title V--Miscellaneous Provisions 9
   2. RELATIONSHIP TO STATE AND FEDERAL LAWS 13
      1. State Laws Against Discrimination 13
      2. Barrier-Free Design Code 15
      3. Rehabilitation Act of 1973 16
   3. TITLE I: EMPLOYMENT PROVISIONS 18
      1. Who is Considered an "Employer" 18
      2. What Is a Disability 19
      3. Qualified Disabled Persons Protected 23
      4. Essential Job Functions 24
      5. Employer Obligation for Reasonable Accommodation 25
      6. Medical Screening 27
      7. Recordkeeping 28
      8. Effective Date of Legislation 28
   4. TITLE III: NEW RIGHTS OF ACCESS TO FACILITIES AND SERVICES FOR THE DISABLED 28
      1. Introduction 29
      2. What is a Public Accommodation 29
      3. What is a Commercial Facility 29
      4. General Non-discrimination Rules for Public Accommodations 30
      5. Specific Requirements 31
      6. Exceptions 33
   5. NON-DISCRIMINATION IN MEDICAL INSURANCE 33
2. DEVELOPMENTS IN EQUAL EMPLOYMENT LAW 34
   1. SEXUAL HARASSMENT 34
      1. Sexual Harassment as a Continuing Violation 34
      2. Displays of Pictures and Posters in Workplace Constitutes Sexual Harassment 35
      3. "Reasonable Woman" Standard for Analyzing Claims of Hostile Environment Sexual Harassment 36
      4. Participation in Sexual Joking Bars Claim of Sexual Harassment 37
      5. Female Employee May Pursue Hostile Environment Claim Even Though She Responded in Kind to Sexual Remarks 37
      6. Class Action Treatment is Granted to Sex Harassment Claim 38
      7. Plaintiff Claim That She Was Subjected to Unwelcome Sexual Harassment Dismissed Due to TCHRA Preemption 39
      8. EEOC's Recommendations Concerning Sexual Harassment Policy 39
   2. FETAL PROTECTION AND PREFERENTIAL TREATMENT OF PREGNANCY 40
      1. U.S. Supreme Court Finds Employer's Fetal Protection Policy Violates Title VII 40
      2. No Violation of Title VII for Preferential Treatment of Pregnant Employees 41
      3. Employer Lawfully Withdrew Offer of Employment to Applicant After Learning She Was Pregnant 42
      4. Pregnancy Disabilities Should be Considered the Same as Other Temporary Medical Disabilities 42
      5. Court Upholds Policy Against Use of Sick Leave to Extend Workers' Maternity Leave 42
      6. EEOC Policy on Parental Leave 43
   3. AGE DISCRIMINATION 43
      1. Employee Under 40 at Time of Layoff in Protected Class 43
      2. Rejecting Applicant in Protected Age Group Because He was "Over Qualified" Constitutes Discrimination 44
   4. RELIGIOUS DISCRIMINATION 45
      1. Employer's Accommodation of Only One of Two Practices of Plaintiff's Religion Violates Reasonable Accommodation of Religious Practices Required by Title VII 45
   5. RACE DISCRIMINATION 46
      1. Employer Liable for Not Taking Sufficiently Diligent Remedial Action in Dealing with Harassment of Black Employee 46
      2. Fifth Circuit Holds That Employer Discriminated Against Black Employee by Failing To Counsel Her Prior to Discharge 46
   6. AIDS DISCRIMINATION 47
      1. Fifth Circuit Determines AIDS is Not a Handicap for TCHRA Purposes 47
      2. The Eleventh Circuit Court Determined that Light-Duty Assignment Violates Section 504 of the Rehabilitation Act of 1973 47
   7. STATE JURISDICTION AND PROCEDURAL ISSUES 47
      1. Texas Supreme Court Holds That Exhaustion of Administrative Remedies is a Mandatory Prerequisite To Filing a Civil Action Alleging Violations of The TCHRA 47
      2. Austin Court of Appeals Holds That One Year Limit for Filing Suit After Filing TCHR Complaint is Mandatory and Jurisdictional 48
      3. Federal District Court Grants Summary Judgment to Employer on TCHRA Claim Because of Plaintiff's Failure to Meet Filing Deadline 49
3. LEGISLATIVE AND REGULATORY DEVELOPMENTS 50

   FEDERAL LEGISLATION 50

   1. DISCRIMINATION 50
      1. Civil Rights Act of 1991 50
      2. Age Discrimination 58
      3. Sex Discrimination 61
   2. FAIR LABOR STANDARDS ACT ("FLSA") 61
      1. Increase in Minimum Wage 61
      2. Increase in Maximum Civil Penalties for Child Labor Violations Under Fair Labor Standards Act Takes Effect 61
   3. SOLDIERS' AND SAILORS' CIVIL RELIEF ACT AMENDMENTS OF 1991 61
   4. EMPLOYEE POLYGRAPH TESTING 62

      TEXAS LEGISLATION 63

   5. TEXAS UNEMPLOYMENT COMPENSATION ACT 63
      1. Amendment to Section 11, Texas Unemployment Compensation Act, on Collateral Estoppel 63
   6. NOTICE REQUIREMENT TO NEW EMPLOYEES ON RIGHT TO "OPT-OUT" OF TEXAS WORKERS' COMPENSATION COVERAGE 63
   7. DRUG POLICY REQUIREMENT FOR TEXAS WORKERS' COMPENSATION SUBSCRIBERS 67
4. EMPLOYER LIABILITY FOR "OUTRAGEOUS" CONDUCT: DEVELOPMENTS IN EMPLOYMENT TORT AND WRONGFUL DISCHARGE LITIGATION 68
   1. INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL 68
      1. Overview 68
      2. Is The Cause Of Action Preempted By Other Law? 69
      3. Federal Courts Distinguish Between Intentional And Negligent Infliction Of Emotional Distress 71
      4. Contexts In Which Texas Courts Have Found Intentional Infliction Of Emotional Distress 75
      5. Potential Contexts For Finding Intentional Or Negligent Infliction Of Emotional Distress 76
   2. DEFAMATION, LIBEL AND SLANDER 76
      1. Overview 76
      2. The "Qualified Privilege" May Sometimes Arise When Employers Discuss Company Sexual Harassment Policy 77
      3. Compelled "Self-Publication" May Subject Employers To Liability For Defamation 78
      4. Inadequate And Vague Employment References May Give Rise To Liability For Defamation 79
   3. WORKERS' COMPENSATION DISCRIMINATION 80
      1. Introduction 80
      2. Overview 81
      3. Definitions 82
      4. Discrimination 82
      5. Remedies 85
      6. Court Proceedings 87

Abstract

This paper outlines the various federal and state legislation which affected Employment Law.

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