Articles Posted in Discrimination

The Americans with Disabilities Act (ADA) is a federal law enacted in 1990 designed to protect individuals with disabilities from being discriminated against. The ADA prohibits discrimination against those individuals who have disabilities in all areas of public life. The ADA applies to areas such as public and private places, transportation, employment, and education. This means that both private and public employers are covered under the ADA.

What Is Considered a Disability under the ADA?

Almost ten years ago, an amendment to the ADA was signed into law clarifying what is considered a disability for the purposes of the ADA. To qualify for protection under the ADA, a person’s impairment must be substantial. Impairment is considered substantial when it restricts or limits a major life activity. Some things considered major life activities are learning, working, walking, breathing, hearing, and seeing.

When Do ADA Protections Apply and What Is Covered?

An employer is required to provide protections under the ADA if the employee has a disability and is qualified to perform the essential functions of the job with or without reasonable accommodations. Essentially, the individual must be able to meet the employer’s requirements, and then must be able to perform the job with or without accommodations. Under the ADA, an employer cannot have any discriminatory practices in areas such as compensation, benefits, hiring, training, firing, and recruiting.

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The United States has a long history of discrimination against various groups, including racial minorities and women. And it should come as no surprise that the most desirable jobs are filled by those who have been given the best opportunities to succeed by not having the road-block of discrimination erected in their path. This often means that certain minority groups, as well as women, are poorly represented across certain industries.This fact has led some private and public-sector employees to engage in what is known as “reverse discrimination.” Essentially, reverse discrimination is exhibiting the preference of a minority candidate over a candidate of a majority group.

Discrimination is often used in the context of adverse action being taken against a person in a minority group. However, that is not necessarily always the case. When an employer exhibits a preference for one group over another based on an immutable characteristic such as race, they are engaging in a form of discrimination. However, the Texas Labor Code and Civil Rights Act of 1964 apply to all citizens equally, regardless of whether they belong to a majority or minority group.

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Mediation is a pretrial strategy that is designed to settle disputes before parties embark on a lengthy and often costly trial. Mediation is employed in many different contexts and is often one of the first methods of resolution in Texas employment discrimination cases. In fact, the Equal Employment Opportunity Commission (EEOC) has implemented mediation programs as one of the first steps to resolving employment discrimination lawsuits.

The mediation process allows the two parties to attempt to resolve their issues and points of contention with the assistance of a trained and neutral third-party. Mediation is an appropriate step in many types of cases that do not involve complex evidentiary or procedural issues. Mediators are trained in the art of negotiation, effective listening, and conflict resolution. In certain instances, the mediator is a trained attorney; however, they are prohibited from providing legal advice while in their mediator role.

The Three Main Types of Mediation

Generally, there are three schools of thought in regards to mediation: facilitative, evaluative, and transformative. In short, during facilitative mediation the mediator does not provide any type of opinion and only facilitates a discussion between the parties. During evaluative mediation, the mediator will provide information regarding the likelihood of success and some potential, reasonable terms of resolution. Finally, during transformative mediation, the main objective is to change the parties’ relationship with one another and allow them to successfully resolve the dispute.

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The Civil Rights Act of 1964 (Civil Rights Act) was monumental in that it provided crucial rights to many people who had been denied equal treatment for many years. While the Act prohibited discrimination based on certain bases, other bases were left uncovered. One area of Texas employment discrimination the Civil Rights Act did not solve was pregnancy discrimination. Following the Civil Rights Act, employers continued to discriminate against women on the basis of their pregnancy. When it came time to explain their seemingly discriminatory behavior, employers routinely claimed they were basing their actions not on the sex of the employee (which was prohibited under the Act) but instead on the fact that the employee was pregnant. This was an unfortunate but accepted distinction for 14 years.

In 1978, however, things changed for the better with the passage of the Pregnancy Discrimination Act (PDA) of 1978. Technically, the PDA was an amendment to the Civil Rights Act of 1964. The text of the PDA was short, and the message was straightforward. Essentially, discrimination on the basis of “pregnancy, child birth, or related medical conditions” was considered sex discrimination. Thus, an employer could no longer discriminate on the basis of an employee’s pregnant status, since doing so would amount to sex discrimination.

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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.As 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?The 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.Employers 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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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.Although 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?

Light duty is a malleable term that is applied differently depending on the employment setting. Broadly, light duty is considered to be a type of temporary or permanent work that is less strenuous than an employee’s normal job duties. Light duty can be applied in both physical and mental-health contexts, and it is relative to the particular position.

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.The 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.

When 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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