— Discrimination Category Archives — Page 8 of 10 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Employers Cannot Discriminate Based on Past, Current, or Future Military Service

November 16, 2018 | Law Office of Rob Wiley, P.C.

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.

Responsibilities of Texas Employers under the Americans with Disabilities Act

November 2, 2018 | Law Office of Rob Wiley, P.C.

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.

What Is Reverse Discrimination and Is It Legal in Texas?

October 19, 2018 | Law Office of Rob Wiley, P.C.

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.

Mediation in Texas Employment Discrimination Lawsuits

August 30, 2018 | Law Office of Rob Wiley, P.C.

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.

Pregnancy Discrimination Is Sex Discrimination

August 20, 2018 | Law Office of Rob Wiley, P.C.

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.

Can Texas Employers Make Compensation Decisions Based on Race?

August 9, 2018 | Law Office of Rob Wiley, P.C.

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:

Can an Employer Fire Someone Based on Their Social Media Posts?

August 3, 2018 | Law Office of Rob Wiley, P.C.

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:

Do Texas Employers Have to Accommodate an Employee’s Religious Beliefs?

July 26, 2018 | Law Office of Rob Wiley, P.C.

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.

Texas Sexual Harassment/Hostile Work Environment Claims May Be Based on the Harassment of a Customer or Patient

July 7, 2018 | Law Office of Rob Wiley, P.C.

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.”

ADA Guidelines Regarding Disclosing Disabilities During Interviews

June 29, 2018 | Law Office of Rob Wiley, P.C.

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.