— Discrimination Category Archives — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

The Importance of Hiring an Employment Attorney During the EEOC Process

July 28, 2023 | Deontae Wherry

Dallas Employment Trial Lawyer Deontae Wherry

When facing workplace discrimination or harassment, one crucial step employees can take to protect their rights and increase the likelihood of a favorable outcome is hiring an experienced employment attorney. The Equal Employment Opportunity Commission (EEOC) is responsible for investigating claims of workplace discrimination, and having legal representation during this process can be highly advantageous. In this blog, we will explore the reasons why it is best to hire an employment attorney while the EEOC investigates your case.

Legal Expertise and Guidance

PWFA

June 2, 2023 | Paige Melendez

For a long time, there was a gray area under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and relevant case law when it came to accommodating pregnancy in the workplace. Under the current laws, discriminating against employees for being pregnant is illegal, but the current law’s protections do not extend far enough. The Pregnant Workers Fairness Act (“PWFA”) bridges this gap and goes into effect on June 27, 2023. Let’s explore the key provisions of this act and its significance in promoting workplace equality and supporting pregnant workers.

The PWFA requires employers to provide reasonable accommodations to pregnant employees. Examples of these accommodations include adjustments to work schedules, access to water and bathroom breaks, modified tasks, assistance with heavy lifting, and temporary transfers to less strenuous positions. The PWFA mirrors the process under the Americans with Disabilities Act for receiving accommodations. In brief, engaging in the interactive process would mean approaching your employer or putting your employer on notice of your pregnancy. Then, engaging in the interactive process by asking for accommodations and working with your employer to find a reasonable accommodation.

The PWFA also mandates that employers provide written notice detailing their protections under the act. This includes information about the right to be free from pregnancy discrimination, the right to reasonable accommodations, and avenues for reporting violations. Additionally, employers are required to maintain records related to reasonable accommodations and make them available for inspection upon request. Both private and public employers are covered as long as an employer has fifteen employees including Congress, Federal agencies, employment agencies, and labor organizations.

Hair Discrimination Soon to Be Illegal in Texas

June 2, 2023 | Deontae Wherry

I’ve always found it puzzling why other people take offense at someone else’s hair. When I was a child, I was captivated by the diverse hairstyles chosen by my relatives. Some rocked dreadlocks, afros, cornrows, and braids. At one point, I even tried growing out my own hair in the hopes of getting braids. I saw it as a way to express my pride in my black heritage. Unfortunately, my hair never reached the desired length.

As a result, I settled for low-cut fades, and that became my signature look. People grew accustomed to seeing me with a low-cut fade. However, there were times when I could not get a haircut and had to sport a small afro. Surprisingly, some individuals joked about my hair being unprofessional. I had never considered the possibility of my hair being deemed unprofessional because I consistently applied oil, combed or brushed it with care.

As I matured, I embraced my culture even more. Witnessing successful black individuals unabashedly embrace their heritage inspired me to be my authentic self. Sadly, some individuals, especially black women, feel constrained and unable to fully express themselves due to concerns about judgment based on their appearance, hairstyle, or even their employability.

What Happens on “Four Twenty-One”?

April 24, 2023 | Paige Melendez

April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test.

A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.

Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.

New Year, New Me: Not Tolerating Discrimination This Year

January 19, 2023 | Deontae Wherry

Happy New Year! During this time of the year, many people set new goals for themselves hoping to improve the status quo. I am a firm believer that your environment affects your goals. For instance, a toxic supervisor or a hostile work environment can affect your professional goals. If you find yourself in a hostile work environment, you do not have to suffer in silence. This year, make it your priority to speak up, if you feel you are being subjected to discrimination and/or retaliation.

What does discrimination look like?

Workplace discrimination can appear in many forms. Sometimes, it is open and obvious; other times, it is subtle. But not all discrimination is illegal. Discrimination is only illegal when your employer discriminates against you because of a protected characteristic such as you race, national origin, disability, age, religion, or sex. Discrimination also includes harassment because of a protected activity. If you believe your boss is discriminating against because you like red socks, then that is not unlawful discrimination.

Let the Jury Decide

December 29, 2022 | Deontae Wherry

One the greatest rights we have is the right to a jury trial. While many employment cases never make it to a jury, employees still have this fundamental right to attempt to get his/her case to a jury.

Over the last year, we have witnessed more employment cases being tried before a jury. One of the reasons we are seeing more jury trials is courts are trying to clear their backlogs from the pandemic, and the way to do that is by having jury trials and getting cases off their dockets. Another reason is people want their day in court. As a result, we have witnessed significant jury verdicts in employment cases.

I also realize that some people do not like juries. Why is this? Maybe it’s because your fate is in the hands of people that you do not know. Perhaps you may not feel confident that you will be given a jury of people who are truly your peers. That is okay if you are uncomfortable having a jury decide your case. You can always have a bench trial before the judge. I must admit getting a case to a jury is not easy, which is discussed by my colleague, Jairo Castellanos, in a recent blog. But, for now, let’s discuss who jurors are, their purpose, and recent jury verdicts.

Abortion Rights are Employment Law

August 4, 2022 | Paige Melendez

The dissolution of abortion rights that should be guaranteed as substantive due process rights have a direct impact not only on healthcare, but on employment. I know that’s odd to say, but it’s a person’s personal health decision that should not be interfered with, even by their employment. However, with the Supreme Court’s decision a flurry of companies began to step in to protect abortion rights in a private sector way. This is untenable as a solution. While helpful in the short-term, it creates a complex picture for employment discrimination.

As a hypothetical, let me set up Grayson. They are currently pregnant and would like to access abortion in a different state. Their employer is Be Free Sporting Goods who has promised that they will give time off and leave to allow Grayson the opportunity to pursue abortion access outside the restrictive laws of states like Texas. Despite this being a personal healthcare choice between them and their doctor, Grayson now has to disclose their decision to access abortion to their human resources department. Be Free is a big corporation – their decision is not communicated to one person, not even two people, but several people must work on the request before it is approved. Grayson’s request is then denied because Marla in the human resources department has a sincerely held religious belief that abortion is wrong. And this juncture is where the private sector’s “solutions” to abortion access fall short.

On one hand, Grayson should have the absolute right to make private healthcare decisions about their own body without interference. Yet, an employer’s approval process just puts more strain on their decision, one that did not exist pre-Dobbs – before the Supreme Court made a judicial decision that appeared more political. The denial of Grayson’s leave requests invokes employment law in a myriad of ways. The right to abortion only affects individuals with the ability to become pregnant, but is it pregnancy discrimination if the intention is to access abortion thus ceasing the pregnancy? Is it sex discrimination because a transman, who has the capacity to become pregnant “shouldn’t be pregnant” and so the human resources department discriminates based on sex because of this man’s decision to become pregnant?

Third Party Retaliation

June 6, 2022 | Deontae Wherry

Suppose both husband and wife, Mr. and Mrs. Johnson, have worked for Democan in the marketing department for 15 years. The couple loves their job because they can help their pastor with his re-election campaign. For most of their career, the couple has reported to the marketing director, Joe Abbott. Mr. Abbott retired seven months ago. Democan then hired Donald Paxton as the new Marketing Director.

Since his first day, Mr. Paxton has had a crush on Mrs. Johnson. Mr. Paxton waits until Mrs. Johnson is alone then he approaches her in the backroom and begins to caress her body. Mrs. Johnson tells Mr. Paxton to stop as his actions were unwelcomed and made her uncomfortable. Mr. Paxton continued with his actions, and Mrs. Johnson continued to ask him to stop. Mrs. Johnson had enough, so she engaged in protected activity by filing multiple sexual harassment complaints with human resources. Human resources did nothing. By this point, Mrs. Johnson feared going to work, so she decided that her only option was to file a charge of discrimination (“charge”) with United States Equal Employment Opportunity Commission (EEOC). After she filed with the EEOC, she notified human resources and Mr. Paxton that she formally filed a charge with EEOC.

Mr. Paxton called Mr. Johnson into his office and asked Mr. Johnson if he would instruct his wife to withdraw her charge of discrimination. Mr. Johnson refused. The following day, Mr. Paxton wrote up both Mr. and Mrs. Johnson for insubordination. They asked Mr. Paxton how they were insubordinate, and Mr. Paxton had no response. The following week, Mr. Paxton terminated Mr. Johnson for eating chips at his desk. Mr. Johnson does not believe Mr. Paxton terminated him for eating chips because his other colleagues were eating chips at their desk as well. Mr. Johnson believes that he was terminated because his wife filed a charge.

Statute of Limitations Laws: The Clock is Always Ticking.

April 28, 2022 | Rob Wiley, P.C.

Time does not stop for anyone. There are time limits for filing claims against your employer. In fact, state and federal claims have different deadlines for different types of claims. When pursuing a claim against your employer, it is important to note the statute of limitations for the claim you intend to pursue. The biggest mistake I see employees make is waiting too long to pursue a claim. If the statute of limitations for your claim has expired, you will not be able to pursue your claim – even if you have a strong claim. There’s no way around it. Below are some of the most common employment-related claims and each claim’s respective statute of limitations.

Discrimination, Harassment, Sexual Harassment, Hostile Work Environment, and Retaliation.

Claims of discrimination, harassment, sexual harassment, hostile work environment, or retaliation under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990, must first be filed with the United State Equal Employment Opportunity Commission (“EEOC”). A complaint with the EEOC must be filed within 300 days of the adverse employment action. An adverse action can range from a write-up to termination. If you do not file a charge of discrimination or retaliation with the EEOC within 300 days of the adverse action, you lose the right to pursue your claims in court.

The Good News and Bad News about Owing Money to the TWC

April 21, 2022 | Paige Melendez

At first glance, describing owing a debt in any way “good” seems erroneous, but most debts cannot be appealed. For the Texas Workforce Commission or TWC, overpayment decisions that state that a claimant for unemployment benefits has been overpaid and now owe that money back are not out of the ordinary. Typically, overpayment notices occur when a claimant has lost their appeal to qualify for unemployment benefits or the initial claim is found to be invalid. In TWC land, practically everything is appealable and the same is true for overpayment notices. And that is what creates the good news. If you have received an overpayment notice saying your unemployment benefits were overpaid, you have that same 14-day window to submit your appeal either for the overpayment itself or for the issue that resulted in an overpayment.

To appeal the overpayment determination for federal extended unemployment compensation, the TWC looks at whether the payment was made non-fraudulently, the overpayment was not the fault of the claimant, and that forcing a claimant to repay the amount would go against equity and good conscience. Within those categories the TWC considers things like whether a claimant received benefits even though they knew they were not eligible, whether the overpayment was a result of a decision on appeal, or whether financial hardship will befall the claimant if they are forced to pay it back.

The bad news is that if you lose the appeal or do not appeal within the allotted time, then you will owe money to the TWC. This could cause you to likely pay back most, if not all, the benefits that were paid out to you as unemployment. As a preliminary matter, if you have the ability to do so, there is the option to simply pay back the amount. That path is not available to a lot of claimants, which puts the situation into the bad news column. But wait, there’s good news in that, too! Thankfully, the TWC allows claimants who were overpaid to setup payment plans in certain situations, so there could be an option to not pay it back all at once. On the whole, owing money to the TWC seems like it is all bad news, but the ability to appeal the determination brings some positives to the situation. However, unemployment benefit overpayment notices can be tricky, so speak to a Dallas Employment Lawyer to see what your options are to appeal an overpayment or unemployment benefits determination.