Articles Posted in Discrimination

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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No Texas employee should have to deal with being harassed, whether it’s from coworkers, management, or even customers. Federal law provides employees who have been the victim of workplace sexual harassment several alternatives. Commonly, when an employee is harassed, the harassing individuals are also employees of the company. However, that no longer needs to be the case in certain circumstances.

In a recent federal court appellate opinion, the court discussed a situation in which a nurse’s sexual harassment and hostile work environment claim against her employer can proceed to trial for the conduct of a patient.

The Facts of the Case

According to the court’s opinion, the case was brought by an experienced Certified Nursing Assistant who worked at the defendant nursing facility. The nurse was assigned to care for an elderly man who suffered from numerous mental health issues, including dementia. Over the course of several years, the patient regularly tried to grope the nurse, requested that she perform sexual acts on him, and routinely made sexually inappropriate comments. Further, the nursing facility was aware of the patient’s propensity to be sexually aggressive. After one incident, a supervisor told the nurse to “put her big girl panties on and go back to work.”

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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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In 1973, the United States Supreme Court issued a landmark employment discrimination case, McDonnell Douglas v. Green, outlining a framework for analyzing cases alleging employment discrimination. The McDonnell-Douglas test, as it has come to be known, is applied in nearly all Texas employment discrimination cases.When the Supreme Court first announced the McDonnell-Douglas test, it was in the context of a defense motion for summary judgment. In other words, the defendant filed a motion to dismiss the plaintiff’s case before it was even submitted to a jury. Essentially, the argument in a pre-trial motion for summary judgment is that the non-moving party cannot prevail at trial because, as a matter of law, their case is insufficient.

The McDonnell-Douglas test is fairly straightforward, although it can become complex in its application. First, the plaintiff must establish a prima facie case of discrimination. This normally requires that the plaintiff prove that they belong to a protected class and that the employer took some adverse employment action against them. This creates a presumption that the defendant employer engaged in discriminatory conduct.

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Recently, a federal judge in Texas issued a ruling prohibiting Texas employers from discriminating against employees based on their sexual orientation or gender identity. Although the plaintiff in that case was ultimately unsuccessful in establishing a case of Texas sexual orientation discrimination, the decision paved the way for gender-identity discrimination lawsuits.Under Title VII of the Civil Rights Act of 1964, certain qualifying employers are not allowed to discriminate or harass an employee based on that person’s sex. Discrimination covers all aspects of employment, including things such as termination, hiring, promotions, and benefits.

More and more advocates are beginning to speak out about gender identity and the related discrimination many of these individuals face in their professional and personal lives. Historically, Title VII has not protected these individuals from discrimination by their employers; however, recent cases have begun to change the tide in how these cases are handled.

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Both 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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If 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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As 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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Texas 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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Both 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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