Attorney Eric Dama

Employment discrimination is widely recognized as an illegal practice. However, what exactly constitutes discrimination changes over time. Due in part to a long-awaited shift in societal values, as well as empirical data establishing that many immutable characteristics have nothing to do with someone’s ability to perform the functions of a job, the number of protected groups under state and federal employment discrimination statutes continues to grow.

PaycheckAs the protected groups have grown over time, so too has the type of conduct that employers are prohibited from engaging in. No longer are Texas employment discrimination lawsuits limited to an employee being fired or demoted for an impermissible reason. Today’s anti-discrimination laws are much more robust, protecting employees from all kinds of workplace discrimination.

According to the Equal Employment Opportunity Commission (EEOC), employers are not permitted to discriminate in any of the following areas:

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Most people on social media assume that their posts, while not necessarily private, are beyond the access of their employers. Indeed, part of what makes social media so valuable is that users are able to express themselves and their beliefs freely and without fear. However, many employees over the last few years have learned the hard way that employers can often find ways to access their posts. But when a Texas employer finds something they don’t like on an employee’s social media account, can the employer actually take action based on the employee’s social media posts?

Social Media AppsThe answer, as is often the case with legal questions of this nature, is “it depends.” As a general matter, Texas is an at-will employment state, meaning that a Texas employer can terminate an employee for any reason at all, so long as it is not an illegal reason. Thus, if an employer does not like something that an employee posted on social media, the employer may be able to fire that employee over it.

Texas employers cannot discriminate, however. And if the post in question was expressing participation in or support of a protected group, the line of what the employer is permitted to do becomes blurry. That is because engaging in discriminatory employment practices regarding protected classes is illegal. In Texas, the classes that are protected by both state and federal anti-discrimination statutes are:

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Under Title VII to the Civil Rights Act of 1964, employers are prohibited from discriminating against their employees based on a number of criteria, including religion. Of course, under Title VII, employers are prohibited from making hiring or firing decisions based on a person’s religion, but the protection granted to employees under Title VII goes beyond that. The Equal Employment Opportunity Commission (EEOC) is the federal agency given broad authority to oversee the enforcement of Title VII.

BibleEmployers must also allow for certain accommodations to be made for an employee’s religious beliefs. According to the EEOC, the following are examples of accommodations that employers have been required to make based on an employee’s religion:

  • Allowing an exception to be made for an employee dress code;
  • Permitting an employee to take time off for a religious holiday;
  • Excusing an employee from a staff prayer or other religious invocation;
  • Granting an employee permission to pray at certain times of the day;
  • Keeping an employee off the schedule during their day of Sabbath or worship.

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The federal minimum wage for hourly employees is $7.25 per hour. Unlike other states that allow for a higher minimum wage, the Texas minimum wage is $7.25. Advocates of a higher minimum wage have cited the unrealistic expectation that people are able to live on $7.25 per hour. Furthermore, they have argued that a higher minimum wage will foster the economic growth of the United States and close the gap between low- and middle-income families.

Piggy BankOn the other side, those in favor of keeping the minimum wage lower argue that employers cannot keep up with the higher wages and will have to lay off more employees, increasing the unemployment rate. However, despite the opposition to increasing the minimum wage, the fact remains that individuals in these positions often face many obstacles surviving on so little income. In some cases, employers will try to get around complying with the minimum wage requirement, which leads employees to face even more issues.

There are very few instances when an employer does not need to comply with federal minimum-wage standards. Some exceptions are if the employee is a farm worker, student learner, independent contractor, or tipped employee. If an employee is not sure if they fall into one of these categories, or they believe their employer is not complying with federal statutes, they should contact a Dallas wage and hour attorney.

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Under the Americans with Disabilities Act (ADA), employers are required to offer employees with disabilities reasonable accommodations that will provide them with the ability to apply for or perform the necessary functions of their positions. Employers will often attempt to shrug off this responsibility by claiming that providing the employee with a reasonable accommodation would cause the company to suffer an undue hardship. However, in order to prove an undue hardship and avoid a Texas disability discrimination claim, the employer must provide evidence showing that the accommodation would result in a significant expense or difficulty.

Light Duty WorkAlthough employees may request a specific reasonable accommodation, employers may provide their own accommodations. The Equal Employment Opportunity Commission (EEOC) looks at various factors to determine whether the hardship is significant or whether the accommodation is appropriate.

When Is Light Duty Considered a Reasonable Accommodation?

Those who have immigrated to the United States have played a pivotal role in our nation’s success. Indeed, the goal of encouraging immigrants to assist in growing the United States’ economy was one of the reasons that Congress enacted the Civil Rights Act of 1964, specifically Title VII. Similarly, the Equal Employment Opportunity Commission (EEOC) was enacted as an omnibus bill designed to address discrimination beyond employment, focusing on voting, education, and public accommodations.

DiversityThe purview of Title VII and the EEOC intersect in many ways. Most recently, the EEOC has issued clarification regarding the scope of national origin discrimination when accent discrimination is alleged.

Title VII National Origin Discrimination

Title VII prohibits qualifying employers from discriminating against an individual because of their race, color, religion, sex, or national origin. Discrimination can take many forms, including failure to interview or hire, disparate compensation or benefits, or terminating an employee because of those enumerated characteristics. A Texas national origin discrimination claim can be appropriate in these situations.

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Disclosing a disability can be daunting because, in many instances, this requires individuals to discuss highly personal information with professional associates. There are many factors to consider when deciding how to disclose a disability. Prospective employees often feel pressured to disclose a disability, especially when they may require an accommodation. However, the Americans with Disabilities Act (ADA) clearly outlines when a disclosure must be made and what an employer is required to do to accommodate that disability.

HandshakeWhen do Texas Employers Need to Be Notified of Disability?

Requiring a prospective employee to disclose their disability prior to a job offer is an unreasonable requirement. As such, the ADA has provided guidance to both employees and employers on what is permissible to inquire about and what is required to be disclosed.

In general, the ADA bars an employer from asking questions, during the pre-offer period, that may require a prospective employee to reveal a disability. This includes prohibiting an employer from asking questions during an interview, eliciting answers through written questionnaires, or from reviewing records from a medical exam.

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In Texas, final compensation policies and practices are regulated by the state’s Payday Law. Among other things, the law instructs employers and employees on their rights after an employee leaves employment. In cases in which an employee is fired, discharged, laid off, or involved in any other involuntary separation, they are due their pay within six calendar days. In instances in which the employee leaves voluntarily, such as by quitting or retiring, they are due their final pay on the next regularly scheduled payday.

LaptopTexas Severance Pay

Under the Texas Payday Law, Texas employers are not required to provide their employees with severance pay, although many employers do provide this or may be required to provide this for a multitude of reasons, such as provisions in Texas employment contracts.

Severance pay is a type of compensation that some companies offer when employees are terminated due to no fault of their own. This is usually applicable in situations in which an employee has worked at a particular job for some length of time or in a certain position and has been let go. Generally, employers use a set formula to determine when an employer will be due severance pay. The theory behind severance pay is to compensate the employee for the lack of advance notice of their termination. Although the Fair Labor Standards Act (FLSA) does not mandate severance pay, many Texas employers offer this type of compensation.

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In 1993, Congress adopted the Family and Medical Leave Act (FMLA). This federal law was enacted to provide certain employees with 12 workweeks of unpaid leave each year without the risk of being terminated. Public agencies, such as local, state, and federal employers, and local school employers must comply with the Act. Additionally, private employers who have 50 or more employees for at least 20 workweeks per year must also comply with the Act. This federal law is applicable in Texas FMLA claims based on discriminatory conduct.

CalendarGenerally, the FMLA can be used by eligible employees in the following situations:

  • When an employee cannot work because of a serious medical issue,

In 1979, the United States Civil Service Commission established the Merit Systems Protection Board (MSPB), which is an agency designed to prevent federal employers from engaging in prohibited personnel practices. Under the MSPB, federal employees are entitled to a hearing after they are terminated, suspended, or demoted because of their performance or conduct.

ChecklistThe MSPB process is crucial for employees who believe that their conduct did not warrant the adverse employment action taken against them. The Civil Service Reform Act mandates that federal employees are given their due process when terminated. This is to prevent powerful federal employers from engaging in arbitrary employment actions. Of course, when a federal employer takes an adverse action against an employee, there are lasting impacts on that person’s personal and professional life.

The MSPB is a complex entity, and there are many roadblocks that an employee may encounter, due to the nature of the employing agency and the processes involved. First, employees should consult with an attorney to determine whether their adverse employment action will trigger an MSPB appeal. Although it seems clear in some situations, MSPB protections are not extended to all types of federal positions. However, some common situations when an appeal is triggered are when there is an adverse action or a forced retirement. Furthermore, even though the MSPB will attempt to handle a claim within six months, the Board may also pressure the parties to settle in order to more quickly resolve the matter. A Texas employment lawyer can guide employees in effectively working through these steps.

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