Texas employment decisions cannot be made because of sex

microscopeAs long as it has 15 or more employees, your employer cannot take adverse employment actions against you based on your sex under the Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act. Taking an adverse action against an employee based on his or her sex or perceived sex is sex discrimination. For example, if you were not promoted, denied a job, fired, or not trained due to your sex, these are all examples of gender discrimination. Sex discrimination can occur in any industry, although lately many news headlines focus on discrimination in the science and tech industries.

Federal law does not explicitly provide protection based on gender identity, expression, or orientation, but the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that same sex and gender identity discrimination are implicitly included in the prohibition against sex or gender discrimination in Title VII. Although about 429,000 workers identifying as LGBT live in Texas, there is no statewide law that prohibits discrimination based on sexual orientation or gender identity in workplaces. Certain cities have enacted ordinances to prohibit these types of discrimination and harassment.

There are two categories of sex discrimination — direct discrimination and disparate impact. Direct discrimination involves an employer who affirmatively acts in an adverse way against an employee due to sex. For example, if your boss refuses to promote you because he thinks women are not good leaders, this may be actionable as sex discrimination. Disparate impact is a more subtle form of sex discrimination. It exists when an employer creates a policy or practice that is facially neutral, but the policy or practice has a greater negative impact on employees of one sex more than another.

Sometimes gender is considered a bona fide occupational requirement. This a limited situation in which it is permissible to discriminate based on gender because there is a genuine need to have a worker of one gender over another. For example, a casting call might permissibly discriminate based on gender due to the script calling for a character of a particular sex. These issues can be complicated, and if you question whether your employer can rely on a supposed bona fide occupational requirement, you should consult an employment discrimination attorney.

Employers cannot discriminate based on sex, and harassment is included as a form of gender or sex discrimination. Employers can be strictly liable for harassment if the harasser is your supervisor, a manager, or anyone with authority over you and your work assignments. However, they may be liable when the harasser is a customer, client, or coworker, and they do not take proper steps to correct the situation.

Your employer is not supposed to retaliate against you because you file a gender discrimination charge or complaint with the EEOC or the Texas Workforce Commission. Retaliation exists when an employer takes adverse steps against you because you engaged in a protected activity. Protected activities include complaining about gender discrimination, filing a charge about gender discrimination, participating in someone else’s gender discrimination investigation, or resisting an instruction from your employer to discriminate.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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