Attorney Blog, Human Resources

Court Holds Request for Reasonable Accommodations is not Protected Activity

Attorney Harrison Oldham

This post is a little technical, so apologies in advance.

In Texas Department of Transportation v. Lara (a decision delivered on May 9, 2019) Albert Lara, Jr., sued the Texas Department of Transportation for terminating his employment after he took extended leave to recover from surgery. After twenty years of employment with the Department, Lara took extended leave related to gastrointestinal distress.  When the Department advised Lara that he had exhausted all leave available to him, Lara made several requests to extend his unpaid leave of absence.  Some requests were granted but subsequent requests were eventually denied. Lara then requested accommodation from the Department, but Lara’s employment was subsequently terminated.  Six months after the termination, Lara filed a charge of discrimination alleging disability discrimination and retaliation.  Lara alleged the Department failed to provide the reasonable accommodation required by the Texas Commission on Human Rights Act (TCHRA), Tex. Lab. Code § 21.051, and retaliated against him for exercising his rights under the TCHRA.

The most important take away from this case relates to Lara’s retaliation claim.

The essential elements of a retaliation claim under the TCHRA are: (1) the employee engaged in a protected activity; (2) the employer took action against the employee; and (3) there is a causal connection between the protected activity and the adverse employment decision.

The crux of the matter, in this case, was the definition of protected activity.  Under the TCHRA, protected activity includes opposing a discriminatory practice, making or filing a charge with the Texas Workforce Commission, filing a complaint with an employer, or participating in an investigation, proceeding, or hearing. When evaluating the alleged causal link between the protected activity and the adverse employment action, a court “can consider only events that took place after a plaintiff engaged in a protected activity.”

Here, Lara’s only protected activity under the TCHRA occurred when he filed his discrimination complaint with the Texas Workforce Commission.  He filed that complaint six months after his termination.

Lara, however, contends he also engaged in protected activity when he asked for leave to recover from surgery. When making this argument, Lara cited no other Texas authority supporting his construction of the TCHRA.  He instead relied heavily on interpretations of Section 12203 of the Americans with Disabilities Act, asking the Court to follow the federal courts in holding an accommodation request to be a protected activity for the purpose of establishing a prima facie retaliation claim.

However, the court reasoned that while the courts of Texas look to federal interpretation of Title VII and the ADA for guidance on their interpretation of the TCHRA, the court will not allow federal interpretation to override the language of the statute itself.

The federal ADA has an expansive retaliation provisions (42 U.S.C. § 12203(b)) and includes a catchall provision relating to the “exercise of rights otherwise granted by the statute,” whereas the TCHRA’s retaliation provision consists of a short, enumerated lists. Tex. Lab. Code § 21.055 (retaliation).  In addition, the TCHRA does not contain a broad, catch all provision like the ADA.

The court went on to discuss the fact that Texas underwent a major revision of the TCHRA in 1993, when the State Legislature incorporated major provisions of the ADA into the Texas law, including adopting the ADA’s definition of disability and revision to the procedures for reporting violations to comport with federal law. However, the Legislature left the retaliation provision unchanged, choosing not to adopt the more expansive language from the ADA.

Accordingly, given the differences between the ADA and the TCHRA’s statutory language regarding retaliation, the Austin Court of Appeals held that, under the TCHRA, requests for accommodation were not legally protected activity that would support a retaliation claim. This decision departs from two prior decisions out of the San Antonio court of appeals that held requests for accommodation to be protected activity under the TCHRA.

What does this mean for employers? Two things. First, even though oftentimes Texas courts will defer to the ADA for interpretations under the TCHRA, that is not always the case. And second, this case is another reminder that the field of employment law is extremely personal and also exceedingly technical, all at the same time.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas.

You can learn more about him by visiting his website, at: http://lonestarbusinesslaw.com/.

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