Articles Posted in Discrimination

BrailleBoth the Americans with Disabilities Act (ADA) and the Texas Labor Code Chapter 21 prohibit employment discrimination based on disabilities in most workplaces in Texas. If you think you’ve been subjected to discrimination because of your disability, you may have a basis to bring a complaint to the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC).

Individuals qualified as having disabilities under federal and state laws have a physical or mental disability that substantially limits at least one of their major life activities, have a record of having such a disability, or are perceived as having this type of disability. Major life activities under the ADA include caring for yourself, performing physical tasks, seeing, hearing, sleeping, eating, walking, standing, bending, lifting, reading, concentrating, thinking, and breathing. Major life activities also include the proper operation of a major bodily function, such as neurological function, brain function, or endocrine function. “Disability” is supposed to be defined broadly.

An impairment that substantially limits a single major life activity doesn’t need to limit any other major life activity in order to be considered a disability that is covered by the ADA. Even impairments that are episodic or in remission may be disabilities if they would significantly restrict a major life activity when active or not in remission.

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old manIf you are age 40 or over, you are protected from age discrimination under Texas Labor Code Chapter 21, as well as the federal Age Discrimination in Employment Act (ADEA). By law, a Texas private employer with a minimum of 15 or more employees is covered by state law. All state and local governmental entities are covered by state law, regardless of how many employees they have. The ADEA applies to employers with a minimum of 20 employees in 20 or more weeks of the current or prior year. Neither Texas nor federal law protects younger workers from age discrimination.

Age discrimination includes any adverse employment decision taken against you due to your being 40 or older. Employment decisions include hiring, firing, promotions, and demotions, as well as refusing to allow someone to be trained or participate in some other privilege of employment. It is illegal for employers to include age requirements in their job notices, except when they can show an age lower than the limit is reasonably necessary to operating the business. For example, a police department may set an upper limit on the age you can be to do a particular position that requires more physical ability.

It can be hard to determine whether you’ve been subjected to discrimination based on your age. Sometimes, an employer makes comments about wanting fresh faces or critiques older workers in order to nudge older workers to take a retirement or quit. These types of comments and criticisms may be used to show age discrimination, if soon afterward you are terminated or denied a promotion. While there’s no prohibition against being asked your age or date of birth in a job interview, the question could show intent to discriminate. Usually, when age information is necessary, an employer waits to ask until after the employee is hired.

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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.

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manTexas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 prohibit race discrimination in most Texas workplaces. Race discrimination occurs any time that an employer makes an adverse employment decision based on race, and it is absolutely illegal.

Assuming it has a minimum of 15 employees, your private employer cannot make adverse employment decisions when hiring, firing, promoting, paying, training, or providing other terms and conditions of employment. Employers cannot make these decisions based on their biases about the qualities or performance of people who belong to specific races. They also can’t make those decisions based on a job applicant or employee’s association or marriage to someone of a certain race, membership in ethnic or race-based organizations, or attendance in schools that are identified with certain races.

For example, if your manager decides not to promote you to a supervisory position because she has stereotypes about people of your race not being good leaders, this would be race discrimination. Similarly, if you are not hired for a job because a company’s leadership believes that people of your race aren’t creative enough to do a job, that is race discrimination.

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gypsyBoth Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 guard against workplace discrimination that occurs on the basis of an employee’s national origin. National origin is a characteristic that refers to one’s birthplace, ancestry, culture, or linguistic characteristics. Often, national origin discrimination overlaps with race, religion, or color, which are also protected characteristics. For example, discrimination against those from Middle Eastern countries can be motivated by both national origin and the assumption that they subscribe to particular religious practices. Accordingly, a complaint we file on your behalf may assert multiple causes of action or grounds of discrimination.

Often, one’s national origin is revealed through accent. For example, if you grew up in Iran and immigrated to the United States as a young adult, you may still have traces of an Iranian accent. Similarly, if you grew up in Mexico and lived mostly among Mexican immigrants after immigrating, you may speak English with an accent.

You cannot be treated differently in a workplace due to your accent or due to a spouse’s or an associate’s accent. National origin discrimination occurs if an employer makes an adverse employment decision based on your accent. For example, an employer is not supposed to refuse to allow you to work in a customer-facing position due to your accent because he wants to create a more wholesome American image for his restaurant. Similarly, an employer is not supposed to turn down a job applicant for a teaching job because he has an Indian accent.

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wheelchairUnder the Americans with Disabilities Act (ADA) as well as Texas law, your employer is required to provide you with a reasonable accommodation for your disability, as long as you are qualified to do the job. Reasonable accommodations can include any changes to the workplace or tasks that would allow you to do the job.

For example, you might need altered work hours periodically to see a doctor for disabling diabetes. Similarly, you might need a ramp if you need to use a wheelchair. You might need special software if you have an impairment that involves difficulties using your hands, such as amputation or disabling carpal tunnel syndrome.

Sometimes the reasonable accommodation includes time off from work. This may be provided under the ADA or Texas law, but it may also be provided under the federal Family and Medical Leave Act, if your employer is large enough to be covered by this law. Only employers with 50 or more employees are covered. The FMLA requires covered employers to give eligible employees the right to take up to 12 weeks of unpaid leave for a serious health condition. For example, if you have cancer and need time off to go to chemotherapy appointments, your employer may need to accommodate you under the ADA or Texas law. If the chemotherapy doesn’t work, you may be entitled to ADA leave, but you may also be entitled to FMLA leave.

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alcatraz-1219539-1Your past should not dictate your future in America. Those who are able to work should be able to work and build their futures. Partially due to a failed war on drugs, which disproportionately affected African Americans and Latinos, one in four Americans who are of working age have a criminal record.

This is problematic because arrests and convictions can make it much harder to get a job. About 92% of employers conduct criminal background checks when they hire, and numerous people are disqualified from jobs based on this type of search, even though they’ve already been acquitted or served their time. There are some limited protections for those with criminal records, but they are insufficient. No employer should ask about criminal history.

The Equal Employment Opportunity Commission (EEOC) has determined that employers that take up a blanket policy of excluding all job applicants who have a criminal record may be using a practice that has a disparate impact on African Americans and Latinos. Title VII prohibits employers from treating people who have similar criminal records differently due to race, national origin, or another characteristic protected under Title VII.

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flowersMany people in Texas and elsewhere get confused between “employment at will” and “right to work.” Both of these terms are legal terms associated with employment law, but they have distinct meanings that are crucial to understand.

Employment at will is a common law doctrine. It means that the employer can terminate the employee arbitrarily and for any reason. An employee is also allowed to leave at will for no reason or any reason. Generally speaking, when employment is at will, employers can change the terms and conditions of employment and either increase or reduce wages.

However, in many cases, an employer and an employee do sign an employment contract. In some cases, the contract specifies that termination is only for just cause, or the employer and employee agree verbally that the employment will end only because of a just cause within a specific window of time. Sometimes employee handbooks provide language that shows employment is not at will, as do certain collective bargaining agreements.

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on airIn April, Fox News host Bill O’Reilly was removed from the network due to allegations of sexual harassment. This was just the latest of claims related to sexual harassment that have arisen from the network’s office culture, and the network paid $13 million to settle five claims brought related to O’Reilly starting around 2002. The network’s CEO, Roger Ailes, had been previously removed after over 20 women accused him of sexual harassment and psychological torture over a 20-year period.

One reason O’Reilly lasted so long was that he was extremely popular with viewers. He’d gotten four million viewers on average each night in 2017, and viewers continued to watch in spite of the allegations. Around 50 advertisers eventually pulled out because they didn’t want to be associated with the claims against him, which involved staff and guests being subjected to aggressive sexual advances, verbal abuse, and lewd comments. The staff and guests were ignored when they reported it to management, which is unsurprising because the CEO appears to have also been involved in sexually harassing people.

All the way back in 2002, O’Reilly was observed berating a junior producer, who settled for a small amount. Two years later, another producer sued for sexual harassment on the grounds that O’Reilly had told her inappropriate stories about his sex life, advised her to buy a vibrator, and detailed sex fantasies to her over the phone while masturbating. O’Reilly responded by suing the victim, claiming she was extorting him. They settled for $9 million.

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old womanThis lawsuit was based on the Age Discrimination in Employment Act (ADEA), which prohibits discrimination. It protects job applicants and employees who are at least 40 years old from age discrimination with regard to hiring, promotion, compensation, terms or conditions of employment, and termination. It’s enforced by the Equal Employment Opportunity Commission (EEOC). Under federal law, there is no age discrimination against employees who are younger than 40 years old.

You may be able to establish an age discrimination case under federal law by proving:  (1) you’re a member of a protected class of people ages 40-70, (2) you suffered an adverse employment action, (3) people much younger than you filled the position that you wanted or from which you were terminated, and (4) you were qualified for the job that you were dismissed or rejected from doing. Generally, your age must have been the only reason the employer decided to take an adverse step against you.

If you’re able to establish discrimination under the ADEA, your employer must articulate a valid nondiscriminatory reason for taking the step against you. Sometimes an employer offers one or more valid reasons, the presumption that you were discriminated against is eliminated, and then you’ll need to present evidence that is enough for a fact-finder to decide that the employer’s reasons were a pretext to take the decision that was taken. Often, it’s necessary to conduct discovery to show that there are contradictions or inconsistencies in how the employer acted.

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