law-TCHRA | employment discrimination | retaliation by employer | wrongful discharge from employment
Law Concerning Violations of the Texas Commission on Human Rights Act
The Act prohibits "unlawful employment actions." An employer commits an unlawful employment action if the
employer "fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner
against an individual in connection with compensation or the terms, conditions, or privileges of employment"
because of the employee's sex. Tex. Lab. Code Ann. § 21.051(1) (Vernon 2006). An employer also commits an
unlawful employment action if the employer retaliates or discriminates against a person who opposes a
discriminatory practice or who makes or files a charge or files a complaint under the Act. Id. § 21.055 (Vernon
2006). We look to federal law to interpret the Act's provisions because, "[b]y adopting the Act, the Legislature
'intended to correlate state law with federal law in employment discrimination cases.'" AutoZone, Inc. v. Reyes,
272 S.W.3d 588, 592 (Tex. 2008) (citations omitted).
"Texas law requires that a complaint of unlawful employment practices be filed with the EEOC or the Texas
Commission on Human Rights within 180 days after the alleged unlawful employment practice occurred." Davis
v. Autonation USA Corp., 226 S.W.3d 487, 491 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing Specialty
Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996)); see Tex. Lab. Code Ann. § 21.202 (Vernon
2006) (entitled "Statute of Limitations"). "This time limit is mandatory and jurisdictional." Davis, 226 S.W.3d at
491 (citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991)). "Failure to timely file an
administrative complaint deprives Texas trial courts of subject-matter jurisdiction." Id. (citing Czerwinski v. Univ.
of Tex. Health Sci. Ctr., 116 S.W.3d 119, 122 (Tex. App.--Houston [14th Dist.] 2002, pet. denied); Vincent v. W.
Tex. State Univ., 895 S.W.2d 469, 473 (Tex. App.--Amarillo 1995, no writ)). In determining when an unlawful
employment practice occurred, "'[t]he proper focus is upon the time of the discriminatory acts, not upon the time
at which the consequences of the acts become most painful.'" Davis, 226 S.W.3d at 491 (quoting Del. State Coll.
v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504 (1980)).
An exception to the application of the 180-day limitations period is the continuing violation doctrine. See id. at
493. The continuing violation doctrine applies when an unlawful employment practice manifests itself over time,
rather than as a series of discrete acts. Id. (citing Wal-Mart Stores v. Davis, 979 S.W.2d 30, 31 (Tex. App.--
Austin 1998, pet. denied)). Under the continuing violation theory, a plaintiff must show an organized scheme
leading to and including a present violation, so that it is the cumulative effect of the discriminatory practice,
rather than any discrete occurrence, that gives rise to the cause of action. Id. (citing Cooper-Day v. RME
Petroleum Co., 121 S.W.3d 78, 87 (Tex. App.--Fort Worth 2003, pet. denied)); see also Huckabay v. Moore, 142
F.3d 233, 239 (5th Cir.1998) (describing continuing violation as "a persisting and continuing system of
discriminatory practices in promotion or transfer that produces effects that may not manifest themselves as
individually discriminatory except in cumulation over a period of time"). For example, a claim of a hostile work
environment is a continuing violation, while "termination, failure to promote, denial of transfer, or refusal to hire"
are discrete acts. Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073 (2002).
A lawsuit under the Act is limited to claims made in the charge or complaint filed with the EEOC or the
Commission and factually related claims that can reasonably be expected to grow out of the commission's
investigation. Bartosh v. Sam Houston State Univ., 259 S.W.3d 317, 321 (Tex. App.--Texarkana 2008, pet.
denied). In reviewing a claimant's charge of discrimination before the EEOC or Commission, we should construe
them with "utmost liberality," although the charge must contain an adequate factual basis so that it puts the
employer on notice of the existence and nature of the charges. Id. (citing Preston v. Tex. Dep't of Family & Prot.
Servs., 222 Fed. Appx. 353, 356 (5th Cir. 2007)). "The crucial element of a charge of discrimination is the
factual statement contained" in the administrative complaint. Id. (quoting Preston, 222 Fed.Appx. at 356); see
also 29 C.F.R. § 1601.12(b) (2009) ("a charge is sufficient when . . . sufficiently precise to identify the parties,
and to describe generally the action or practices complained of").
Santi v. UTHSC at Houston (Tex.App.- Houston [1st Dist.] Nov. 19, 2009)(Alcala)
(public employment dispute, discrimination, retaliation under the TCHRA, plea to the jurisdiction granted)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Alcala
Before Justices Keyes, Alcala and Hanks
01-09-00186-CV Kristi Santi v. The Univerity of Texas Health Science Center at Houston, A Component
Institution of the University of Texas System
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan
TEXAS SUPREME COURT TCHRA CASES
City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(Whistleblower Act versus Texas Commission on Human Rights Act, TCHRA, state anti-discrimination statute as
exclusive remedy for retaliation complaint, exhaustion of administrative remedies, prerequisites for suit)
Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(Opinion by Justice O’Neill)
(public employment, wrongful termination claim, TTCA, tort claims, TCHRA claim, immunity waiver)
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