After watching the 8 minutes and 46 seconds video that outraged the world, many individuals have joined in the fight for racial justice. These individuals have chosen not to be silent; they have decided to speak up and to speak out against racial inequality. The fight against systematic and institutional racism and discrimination is not solely related to police brutality, but it is embedded in every facet of our society, including in the workplace. Although the Civil Rights Act was passed more than 50 years ago, there is still great progress to be made to end workplace race discrimination.
The Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, prohibits employers with 15 or more employees from discriminating against women on the basis of pregnancy, childbirth, or related medical conditions. Although the PDA has been in effect since 1978, discrimination against pregnant women in the workplace continues to be an issue. In fact, in fiscal year 2019, the U.S. Equal Employment Opportunity Commission (EEOC) received over 2700 charges of discrimination on the basis of pregnancy and collected more than $22 million dollars in monetary settlements.
This month the Supreme Court of the United States of America handed down one of the most long-awaited decisions of the term. On June 15, 2020, the Supreme Court held that discrimination based on sexual orientation or transgender status constitutes discrimination “because of … sex” Under Title VII of the Civil Rights Act of 1964.
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees and job applicants against discrimination based on race, color, national origin, sex, and religion. Before Title VII of the Civil Rights Act of 1964 was signed into law, an employer could reject a job applicant or discriminate against an employee based on the applicant or employee’s race, color, national origin, religion, or sex. In fact, an employer could reject a job applicant or fire an employee or in some other way discriminate against that person because they were black or white, Muslim or Christian, a man or a woman, or German or Mexican, and it would be completely legal.
Discrimination at work is one of the hottest topics of employment law. There are a number of federal and state laws that prohibit discrimination on the basis of specific protected characteristics. Almost all of these laws protect not only employees, but also applicants for employment and sometimes even former employees who are retaliated against after their employment ends.
The Coronavirus pandemic has severely impacted American workplaces. Employees in various industries have reported cuts in work hours, cuts in salary, job-loss, and instructions to work from home. While the world as we know it is changing and adapting to the “new normal,” discrimination laws remain the same. Employees are still protected against discrimination, harassment, and retaliation. This is true even if you are working from home.
The answer to this question is no. Federal labor laws prohibit employers from restraining, interfering with, or coercing employees who collectively participate in activities related to the terms and conditions of their employment. Those Terms and conditions cover a broad range of topics, like employees discussing wages, hourly rates, salaries, bonuses, commissions, and any other form of payment. For that reason, an employer cannot tell its employees not to discuss their pay amongst themselves. Otherwise, that would be a violation of the National Labor Relations Act (NLRA). And it does not matter if the employer has a union. Both unionized and non-unionized employees are protected.
Texas employers that cite background checks in their personnel decisions must comply with specific procedures and statutes. Employers will typically include background checks in their hiring, retention, and promotion policies to evaluate a person’s work, education, financial, and criminal history. Although background checks are an integral part of workforce development, employers must protect employee’s rights in the process. The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) enforce the standards put forth through the Fair Credit Reporting Act (FCRA) and federal protections.
The EEOC requires employers to treat their applicants and employees equally before they request or review their background information. Employers cannot discriminatorily select which applicants and employees they request information for based on a person’s protected class. Under the FCRA, employers must take additional steps before they request an applicant or employee’s background information. The FCRA requires employers to:
- Inform the person the employer might use the results of the background check to make an employment decision;
Texas employees who have suffered discrimination in the workplace may utilize two agencies to bring an employment discrimination lawsuit. These two agencies are the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC).
Federal employment discrimination lawsuits include discrimination complaints based on retaliation, national origin, disability, gender, race, age, pregnancy, and religion. Texas has implemented the Texas Commission on Human Rights Act (TCHRA). In addition to the federal protections, the TCHRA also protects employees from discrimination based on genetic information.
The EEOC is a federal agency that enforces federal employment discrimination laws. The Age Discrimination in Employment Act, Americans with Disabilities Act, and Title VII of the Civil Rights Act, are all administered by the EEOC. The TWC is a state agency that provides workforce services to Texas employers, job seekers, and employees. The TWC enforces the TCHRA.
Under the Americans with Disabilities Act (ADA), employers cannot discriminate against prospective or current employees based on their disability. The ADA provides that qualified individuals with disabilities should receive a reasonable accommodation to perform their job duties, unless it imposes an undue burden on the employer. These accommodations offer disabled individuals the ability to engage in equal employment opportunities.
Reasonable accommodations can be provided at all stages of employment and in various ways. For example, employers may be asked to change the application process or training process to accommodate a prospective or new employee. Moreover, an employer could adjust equipment or software to assist a disabled employee. Although employers are not required to create new positions, they may be required to reassign employees if a qualified position becomes available.
In some instances, an employee may request to work at home to accommodate their disability. Although not every job can be performed at home, teleworking can be a reasonable accommodation depending on the circumstances. The ADA does not mandate employers offer teleworking as a reasonable accommodation; however, if an employer does retain a teleworking policy, they must allow disabled employees that same opportunity. The result may be an employer modifying their current teleworking policy to accommodate a person with disabilities.
The Immigration and Nationality Act (the Act) provides U.S. citizens, permanent residents, asylum seekers, and refugees protection against employment discrimination based on their immigration status. The Act applies if an employer has more than four employees.
Discrimination under the Act occurs when an employer treats a person differently based on their immigration or citizenship status. The law requires Texas employers treat people equally when they announce a position, solicit applications, conduct interviews, make job offers, hire an individual, or terminate employment. Moreover, employers cannot retaliate against an employee if they file a claim of discrimination, participate in an investigation, or assert their rights under any anti-discrimination law. However, this rule does not apply to permanent residents who fail to file for naturalization within six months of eligibility.
If a prospective or current employee suffers any type of adverse employment action based on their immigration status, their employer may face liability. Some common forms of discrimination based on immigration status are when an employer only hires U.S. citizens, if an employer does not want to hire a person because of the paperwork involved in hiring a temporary resident, or demanding to see specific un-required documents.