Attorney Eric Dama

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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At the end of 2017, an international movement fighting against assault and sexual harassment began to take hold on social media. The hashtag #MeToo was utilized to illustrate the pervasive presence of harassment and sexual assault – specifically in the workplace. The catalyst for the movement came shortly after allegations were made against Harvey Weinstein, a well-known film producer. While the problem of sexual harassment and assault was only recently thrust into the public light, lawmakers have been taking steps to combat the reprehensible behavior for decades.

Woman at DeskIn 1980, the Equal Employment Opportunity Commission (EEOC) began to study the prevalence of sexual harassment in the workplace. Despite significant pressure from women’s advocates and widespread training for employers and employees, workplace sexual harassment is still a pressing issue. According to the EEOC, the Commission receives over 11,000 complaints each year. However, given the realistic threat of retaliation that people face when confronting or accusing perpetrators of abuse and harassment, the number of cases is underestimated.

According to the EEOC, it is illegal to harass any employee or applicant because of their sex. Common forms of Texas sexual harassment include behaviors such as unwanted sexual advances, invitations and requests for sexual favors, and other similar verbal or physical behaviors that are based on a person’s sex. Unfortunately, issues arise when the behavior is considered “teasing” or an off-hand comment, or if it occurs on an isolated occasion.

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When employees are involved in an actual or perceived workplace conflict, such as a claim of employment discrimination, employers will often conduct an internal investigation in order to protect their own interests. Although workplace investigations can bolster an employee’s claim in some cases, these investigations can also be very detrimental. In certain situations, an internal investigation can hurt an employee if they are being falsely accused of certain conduct or if their allegations are being ignored.

Magnifying GlassMany times, employers do not properly conduct workplace investigations because they do not effectively plan the investigation, they ignore complaints, or they wait too long to conduct the investigation. Furthermore, employers may also lose their sense of objectivity, become aggressive, or fail to keep proper records of their investigation. It is very important that employees have appropriate support and assistance during these investigations, since the outcome can have a lasting impact on their professional and personal lives.

When an employee is asked to participate in or attend a workplace investigation, it is important that they have a Dallas employment attorney assist them through the process. Many employers will try and minimize the significance of the investigation in an attempt to get the employee to participate in the process without an attorney.

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In 1973, the United States Supreme Court issued a landmark employment discrimination case, McDonnell Douglas v. Green, outlining a framework for analyzing cases alleging employment discrimination. The McDonnell-Douglas test, as it has come to be known, is applied in nearly all Texas employment discrimination cases.

GavelWhen the Supreme Court first announced the McDonnell-Douglas test, it was in the context of a defense motion for summary judgment. In other words, the defendant filed a motion to dismiss the plaintiff’s case before it was even submitted to a jury. Essentially, the argument in a pre-trial motion for summary judgment is that the non-moving party cannot prevail at trial because, as a matter of law, their case is insufficient.

The McDonnell-Douglas test is fairly straightforward, although it can become complex in its application. First, the plaintiff must establish a prima facie case of discrimination. This normally requires that the plaintiff prove that they belong to a protected class and that the employer took some adverse employment action against them. This creates a presumption that the defendant employer engaged in discriminatory conduct.

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Recently, a federal judge in Texas issued a ruling prohibiting Texas employers from discriminating against employees based on their sexual orientation or gender identity. Although the plaintiff in that case was ultimately unsuccessful in establishing a case of Texas sexual orientation discrimination, the decision paved the way for gender-identity discrimination lawsuits.

GavelUnder Title VII of the Civil Rights Act of 1964, certain qualifying employers are not allowed to discriminate or harass an employee based on that person’s sex. Discrimination covers all aspects of employment, including things such as termination, hiring, promotions, and benefits.

More and more advocates are beginning to speak out about gender identity and the related discrimination many of these individuals face in their professional and personal lives. Historically, Title VII has not protected these individuals from discrimination by their employers; however, recent cases have begun to change the tide in how these cases are handled.

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