Articles Posted in Discrimination

In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.

When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.

According to federal law and the Equal Employment Opportunity Commission (EEOC), employers cannot discriminate against employees based on their race, age, disability, or other protected characteristics. Employers also cannot retaliate against employees for complaining of discrimination.

An employee who has been discriminated against must first present a prima facie case of discrimination. To fulfill this burden, an employee must establish that they were a member of a protected class, that they were qualified for the job, and that they suffered some kind of adverse employment action based on their class status.

Although these steps may seem straight forward, employees often face difficulties proving that the adverse action was based on their protected class status because employers are frequently able to conceal their true discriminatory motives. In many cases, employers will obscure their motives behind neutral reasons such as “business interests” or an employee’s performance. In these cases, direct evidence of discrimination is often very difficult to obtain. However, employees can still succeed in a Texas employment discrimination lawsuit even if their employer cites a nondiscriminatory reason for its actions.

Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate on the basis of religion. Of course, this includes an employer that makes hiring, firing, promotion, or compensation decisions based on a person’s faith. However, Title VII also more broadly protects employees from having the “terms and conditions” of their employment affected because of their religious beliefs. This means that Texas employers should reasonably accommodate employees’ sincerely held religious beliefs or practices if an employee’s beliefs conflict with the employer’s work requirements.

Common accommodations include an employer allowing for an employee to maintain a flexible schedule, allowing employees to swap shifts when necessary, and also potentially allowing for an employee’s reassignment. A reasonable accommodation may also relate to an employer’s dress or grooming policies. For example, by allowing an employee to wear a head covering or allowing employees to maintain facial hair. In addition, an employee’s request not to wear a specific article of clothing, such as pants or a skirt, may also be the basis for a religious accommodation. Only requests that are based on sincerely held religious beliefs will require an accommodation. However, the term “religion” is broadly defined by the Equal Employment Opportunity Commission, and includes strongly held moral and ethical beliefs.

To obtain a religious accommodation, a Texas employee must first notify their employer of their request. Typically, this should be done in writing and should explain that the employee’s request is based on a sincerely held religious belief. In some cases, an employer will need more time to determine what would need to be done to provide the accommodation. This is supposed to be an interactive process between employee and employer, as the employer attempts to determine how it could implement a satisfactory accommodation. An employer must make a reasonable accommodation unless doing so would cause the employer to suffer an undue hardship.

As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.

Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.

A few of the problematic questions employers routinely ask are:

  • whether an applicant is married, engaged, single, or divorced;
  • whether an applicant has any children and, if so, how old they are;
  • whether an applicant plans on becoming pregnant;
  • what an applicant’s spouse or boyfriend does for a living;
  • whether an applicant attends religious services and, if so, what days; and
  • the origins of an applicant’s last name.

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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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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.

Veterans returning to the United States may face many challenges while trying to adjust to civilian life. Unfortunately, many veterans face employment discrimination, and they may have difficulty obtaining and maintaining employment. Often, employers are reluctant to hire individuals who suffer from disabilities related to their deployment. This can have startling consequences for the workforce, since almost a third of the 12 million veterans report having some type of disability.

In response to the rising reports of employment discrimination, Congress enacted the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). At its inception, the VEVRAA provided Vietnam veterans with protection against employment discrimination. Some common forms of employment discrimination veterans face are when an employer claims a job is no longer available, an employer states they do not want to hire veterans for fear of future deployments, an employer counts military leave against accrued vacation time, or an employer harasses or otherwise retaliates against a service member.

Although the name suggests otherwise, the VEVRAA protections apply to several categories of protected veterans. Protected veterans include those who were:

  • Released from active duty because of a service-connected disability or entitled to compensation under the Veterans Administration;
  • Recently released;
  • On active duty; or
  • Campaign or Armed Forces medal recipients.

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Recently, the United States Supreme Court issued an opinion that will have a significant impact in federal age discrimination cases against government employers. In the case Mount Lemmon Fire District v. Guido, the Court held the Age Discrimination in Employment Act (ADEA) applies to government employers of all sizes.

The ADEA

When the ADEA was passed in 1967, it added age to the list of characteristics that could not be used by an employer as a basis for an adverse employment decision. Under section 630(b), the ADEA defines the term employer as “a person engaged in an industry affecting commerce who has twenty or more employees.” However, the statute also states that an employer “also means … a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State.”

The Facts of the Case

According to the Court’s opinion, the plaintiffs were two men, aged 46 and 54, who were terminated from their positions by the defendant fire department when the fire department began facing budgetary concerns. The fire department was a political subdivision of the State of Arizona. At the time they were fired, the employees were the oldest two firefighters in the department.

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Texas is home to a large number of the country’s veterans. In fact, it is estimated there are over 1.6 million veterans in Texas, putting Texas behind only California as the country’s most veteran-populated state. As a result, veterans make up a sizable portion of the Texas workforce.

Unfortunately, veterans, like many other groups, are still facing issues of discrimination in the workplace. However, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), public and private employers are prohibited from discriminating against an employee based on an employee’s past, present, or future military service.

Unlike other types of workplace discrimination, such as discrimination based on an employee’s race, color, national origin, sex, gender, or religion, discrimination against veterans is not included in the Civil Rights Act of 1964. Instead, veterans are protected by USERRA, which provides comprehensive protection to veterans. The Act protects those who are currently serving in, or previously served in the Army, Marine Corps, Navy, Army National Guard, Coast Guard, Air Force, Air National Guard. Additionally, the Act protects those whose service was both voluntary and involuntary.

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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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