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.
In addition to the Americans with Disabilities Act, the Rehabilitation Act of 1973 (the Act) protects employees who work for the federal government, a program conducted by a federal agency, a program receiving federal financial assistance, or a federal contractor. This Act protects the rights of people with disabilities from discrimination regardless of the number of employees. Legislators designed the Rehabilitation Act in response to the large number of individuals with disabilities who were either unemployed or underemployed based on employers’ reluctance to hire them. Additionally, the Rehabilitation Act requires employers to hire and retain individuals with disabilities.
Section 504 of the Act prohibits employers who receive federal funds from discriminating against a qualified individual with a disability. The Act provides that employers cannot deny benefits, exclude, or discriminate against prospective, current, or former employees based on their disability. Additionally, the Act requires Texas agencies or contract service providers who receive federal funds to recruit actively, employ, and advance qualified disabled individuals.
If a Texas employee believes their employer is discriminating against them, but the ADA does not cover them, they may still be able to pursue a claim based on the Rehabilitation Act. However, the Rehabilitation Act and ADA use the same standards when determining if an employer is engaging in employment discrimination.
Last week we discussed Texas employers’ responsibilities after an employee reports discrimination, including instances involving hostile work environments. Here, we take a closer look at what constitutes a hostile work environment.
Under state and federal civil rights laws, Texas employers are prohibited from engaging in discrimination based on an employee’s sex, race, religion, national origin, age, disability, or pregnancy. Harassment is among the conduct that is prohibited under the anti-discrimination laws. Further, sexual harassment can include a wide range of offensive conduct. A few common examples of harassment are:
- offensive jokes
In the event a Texas employee experiences harassment or discrimination in the workplace, they should notify their employer of the unwanted or offensive conduct immediately. In response to such a report, an employer is required to take prompt remedial measures to rectify the situation. Under Texas law, employment discrimination and harassment occur when an individual or group of individuals are treated differently because of their race, religion, sex, color, national origin, age, pregnancy, or disability.
The Equal Employment Opportunity Commission (EEOC) records and manages data on employment discrimination and harassment across the United States. According to the EEOC, although workplace harassment and discrimination can take many forms, the reports they receive often follow one of several commonly occurring situations. Generally, most complaints occur when an employee has suffered discriminatory harassment based on their protected class. While discrimination may be obvious in some case, more often discrimination based on a protected class is masked behind seemingly innocuous statements and behaviors. This may lead employees to delay reporting the situation for fear of retaliation or ridicule.
Employers have the responsibility to listen to their employee and follow the employer’s own policies and procedures for handling these sorts of complaints. Employers should also interview the parties involved, conduct a thorough investigation, cooperate with authorities, and take prompt remedial action. This action may include coaching, counseling, suspension, or even termination of the offending party. Of course, employers cannot retaliate against their employees for making a discrimination claim. Further, if the harasser is a supervisor, employers are automatically liable for any discrimination.
Under both state and federal law, Texas employees are protected from discrimination based on pregnancy and pregnancy-related illnesses; however, that was not always the case.
Originally, the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, and national origin was not interpreted by the courts to include protection for pregnancy and related medical conditions. During this time, employers were able to make decisions based on the fact an employee was pregnant. It was not until over a decade later, with the passage of the Pregnancy Discrimination Act of 1978 (PDA) that pregnancy was covered. Since the passage of the PDA, discrimination based “on the basis of pregnancy, childbirth, or related medical conditions” has been prohibited because it is considered to be discrimination based on a person’s sex.
Under the PDA, women who are pregnant or are suffering from pregnancy-related illnesses cannot be discriminated against. Common pregnancy-related illnesses include: