On March 1, 2004, the Texas Workforce Commission (“TWC”) formally assumed the functions of the now-defunct Texas Commission on Human Rights (“TCHR”). The transfer of responsibilities, mandated by recent legislation, was finalized upon certification of the move by the U.S. Equal Employment Opportunity Commission (“EEOC”). This means Texas employers facing a charge of discrimination will now respond to TWC's newly-formed Civil Rights Division, rather than TCHR (the address and contact information, however, remain the same).
By way of background, several years ago, Texas, like many states, created its own civil rights statutes mirroring the federal statutes, and its own state agency, TCHR, charged with performing the same functions as the EEOC. Pursuant to a work-sharing agreement between the EEOC and TCHR, by simply checking a box, Texas charging parties could have their charges of discrimination “dual filed” with both the EEOC and TCHR, one of which would handle the investigation and charge processing. Notably, a Texas charging party who failed to check the box, or failed to file a charge with the TCHR within 180 days of the alleged discrimination, was time-barred from filing suit under the state anti-discrimination statutes, but could still file suit under federal law, so long as she filed a charge of discrimination with the EEOC within 300 days of the allegedly discriminatory practice. Each agency was required to keep the other in the loop, and a dual-filing charging party could obtain a “right to sue” from both agencies once 180 days had passed.
When the Legislature began examining the utility of maintaining the TCHR in the spring of 2003, employer advocates hoped Texas would simply do away with the agency. Instead, the Legislature merely transferred TCHR's responsibilities to the TWC. According to its press releases, TWC's Civil Rights Division will continue to enforce the Texas Commission on Human Rights Act and the Texas Fair Housing Act, as well as conduct education and outreach programs. TWC Chair Diane Rath foresees “an increase in efficiency and service to the public in this arena.”
While we certainly hope this forecast is accurate, Texas employers should keep several issues in mind when dealing with TCHR's successor. First, as the “new kid on the block,” TWC's Civil Rights Division is probably out to make an example of someone. Don't let that be your company. Take this time to review your employee handbooks, chat with your managers regarding employee morale, and schedule sensitivity training for your employees. Second, we've noticed the TWC is now providing the employer's position statement to the charging party for review and comment, a break from past practice. Accordingly, consider having your legal counsel review position statements prior to submission to ensure you do not disclose confidential or sensitive information to the charging party, or worse yet-his lawyer, who is probably scanning the names of employee/witnesses for more potential clients. Finally, take note that the newly created agency is likely to be staffed with new employees, who may be unfamiliar with the law and case-handling procedures. You do not want to rely on bad information from a new employee or take their word on the law-all the more reason to make sure you obtain the assistance of qualified employment counsel before responding to the TWC.
In sum, TCHR has a new name (TWCCRD) and some new faces, but the same responsibilities. TWC's Civil Rights Division's handling of those responsibilities, however, is likely to be more aggressive over the coming months.