Dallas Employment Lawyer Blog

Women are still paid less than men. When will we finally get equal pay for equal work?

June 23, 2017 | Adam S. Greenfield

In spite of overblown claims about post-feminism in the past several years, women continue to be paid less than men over their lifetimes. Often, those trying to fight this fact argue that women might be paid less because they have more responsibility for children or because they don’t negotiate their salaries as well or because they choose lower-paid positions. However, gender bias affects women of all ages, education levels, and races.

According to a study by the American Association of University Women (AAUW), women working full time in the United States are paid just 80% of what men are paid, which is a gap of 20%. The gap is even worse for women of color, although it has narrowed since 1960. Women are only expected to reach pay parity with men in 2059, and then only if progress doesn’t stall as it has since 2001. Recently, progress has stalled, and it is possible women’s salaries won’t be on par with men’s salaries until 2152—not even during the lifetimes of girls born today.

As a result of the gender pay gap, about 14% of adult women under age 65 are living below the federal poverty level, as compared to 11% of men. Meanwhile, 10% of women over retirement age are living below the federal poverty level. The pay gap continues to affect retirees because when women retire, they don’t get as much income from Social Security or pensions because they were paid less during their work years.

Texas non-compete laws are killing Austin’s chances of being the next Silicon Valley

June 20, 2017 | Adam S. Greenfield

Silicon Valley has been successful partially due to employee mobility. California forbids non-compete agreements, and it’s a fundamental policy of the state that any agreement in restraint of competition is to that extent void. There are certain exceptions, such as a person selling the goodwill of a business to a buyer who wants him or her to refrain from carrying on a similar business within a certain geographic area in which the original business has been sold.

However, most non-compete agreements that are enforceable to restrict workers in other states are void in California. Almost one in five employees in America is now subject to a non-compete clause, and many of these employees are in low-paying or blue collar jobs. For example, a well-known case involved the sandwich chain Jimmy John’s, which tried to stop its former franchisees from working for other sandwich makers. As a result, Silicon Valley employees are able to shift tech jobs relatively easily. The result has been substantial innovation.

Researchers have found that non-compete clauses in other states force workers to stay longer in one job, and they earn less than they would in a state like California, or in a country like Israel, which is also hostile to non-compete agreements. Although firms may invest more in research and development if their investment is protected by a non-compete clause, a worker who is locked into a particular company invests less in self-training, and this affects what the worker produces and creates. Ultimately, non-compete clauses chill innovation more than they help it.

When your boss is a racist

June 16, 2017 | Adam S. Greenfield

Federal and Texas laws prohibit discriminating on the basis of race. If your boss is a racist who takes an adverse employment action against you because of your race, you may have grounds to file a lawsuit. The primary federal law that prohibits workplace race discrimination is Title VII of the Civil Rights Act of 1964. This law applies to private employers that employ 15 or more employees.

Texas Labor Code Chapter 21 also prohibits race discrimination. Under this law, an employer cannot base its employment decisions on its assumptions or stereotypes about the performance of certain races, or on a job applicant or employee’s association with individuals of particular races, membership in ethnic-based organizations, or participation in schools or houses of worship associated with specific minority groups. They aren’t permitted to isolate or segregate employees of certain races from customer contact, exclude them from certain positions or regions, or code applications to designate race for the purpose of excluding them from particular positions.

If your boss is racist, and you believe he or she is making employment decisions based on race, you may eventually need to file a charge or lawsuit. You will need proof in order to successfully prevail on your claim. You should record incidents of abusive behavior or racism immediately after they occur and keep your notes in a place that others cannot access. In your entry, you should note the date and time and describe what happened.

How forced arbitration denies workers their civil rights in Texas and nationwide

June 13, 2017 | Adam S. Greenfield

Arbitration occurs when a private tribunal, rather than a court, adjudicates a particular issue. Usually, the rules in arbitration are more relaxed than they are in civil litigation, but different tribunals or arbitration service providers have different procedures that can be very close to or very different from court procedures. Sometimes corporate employers force workers to agree to arbitrate their disputes based on a clause in their employment agreement. A worker is then forced to agree to arbitrate any employment issue if they want to be employed by the employer.

The judicial system, and in particular the United States Supreme Court, has enabled corporations to force their employees into arbitration to adjudicate all types of legal violations, including those related to employment discrimination and wage and hour disputes. This means that corporations have the power to write rules and design the procedures that apply to them in case they discriminate against their employees or fail to pay them their wages properly under law. Forced arbitration, as ratified by the judiciary, denies workers their right to bring a lawsuit against an employer for serious legal violations and have the dispute judged by a jury.

This is important because employees win less often in arbitration than in court. When they do win, they receive lower damages awards. Some arbitration clauses even require the losing party to pay the arbitration fees, including their employer’s attorneys’ fees. This deters workers from bringing their claims and exercising their rights.

How budget cuts affect the EEOC

June 9, 2017 | Adam S. Greenfield

President Trump’s budget adversely affects the Equal Employment Opportunity Commission (EEOC) and other agencies essential to workers’ rights. It asks for the elimination of 249 full-time positions at the EEOC as compared to 2016.

The EEOC enforces numerous federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees on the basis of national origin, race, color, sex, or religion. When an employee brings a charge of discrimination, harassment, or retaliation to the EEOC, the EEOC can investigate it and determine whether there’s reasonable cause to believe there’s been discrimination. Both the employee and the organization are supposed to provide information, which is evaluated by the investigator to make a recommendation about whether there is a reasonable basis for believing there’s been unlawful discrimination.

When the EEOC can’t conclude there’s been discrimination, the employee is told he or she can sue in federal court within 90 days. However, if the EEOC finds there’s reason to believe there’s been discrimination, it may invite the parties to conciliation, and if that fails, the EEOC files a federal lawsuit.

When sexual harassment is about power, not sex

June 2, 2017 | Adam S. Greenfield

One in three women report being sexually harassed on the job in America. People started taking sexual harassment seriously when Anita Hill accused Justice Clarence Thomas of sexual harassment a little more than two decades ago, but only 3% of women who are sexually harassed file a formal complaint because although they want to leave, they need the income from their jobs.

Many people assume that sexual harassment is a result of a man’s sexual interest in a female employee. It’s often assumed that the man is inept or awkward or that the woman is lying or exaggerating. However, most sexual harassment is actually about power, rather than sex. Only about a quarter of sexual harassment cases are simply seductions gone awry, and very few are quid pro quo harassment cases, in which the man asks for a sexual favor in exchange for a promotion or for not firing the woman.

Sexual harassment is a way to keep women in their place and devalue a woman’s contribution in the workplace. Calling attention to a female worker’s sexuality is a way for someone with greater power to make her vulnerable. Often, women who are sexually harassed blame themselves. Most of the time, the people doing the harassing are men, but sometimes women in positions of power are accused of sexual harassment as well.

Gay and Lesbian discrimination in Texas: which options does a worker have?

May 26, 2017 | Adam S. Greenfield

About 429,000 workers who identify as lesbian, gay, bisexual, or transgender live in Texas. According to the Williams Institute, there are about 666,000 LGBT adults in the state, including those working. Discrimination against LGBT employees is prevalent in Texas and across the country, with about 21% of those LGBT employees responding to a 2013 national survey that they’d been treated unfairly by an employer in terms of their hiring, pay, or promotions.

The same or even more discrimination in the workplace has been reported by transgender people. About 79% of respondents from Texas in the largest survey of transgender workers to date reported they’d experienced mistreatment on the job. The discrimination extends to disparity in pay. The median income of men in same sex couples in Texas has been reported as 9% less than the median income of men in opposite sex marriages.

Unfortunately, Texas doesn’t have a state law that explicitly protects these workers from discrimination based on their sexual orientation or gender identity. There are four cities that do provide protection in the form of ordinances against gender identity and sexual orientation discrimination in public and private sector jobs. Seven more cities protect their own local government workers from discrimination on these grounds. Still, that leaves about 86% of Texas employees without any state or local protection for being gay, lesbian, bisexual, or transgender. Therefore, remedies for workers who face discrimination on these grounds are limited.

English-only policies are illegal

May 23, 2017 | Adam S. Greenfield

According to the Equal Employment Opportunity Commission (EEOC), the agency that enforces many federal anti-discrimination laws that cover the workplace, about 17.6% of the population spoke a language other than English as of 2000.

Due to the rise of diversity, many employers started implementing English-only workplace policies to stop their employees from talking in languages other than English. Sometimes the policies required employees to speak English at all times on the job, or they required them to speak English while performing specific tasks.

These policies are controversial and may be motivated by xenophobia. In general, they discriminate against employees who have foreign backgrounds who may not be comfortable speaking in English at all times. Title VII doesn’t explicitly prohibit discrimination on the basis of native language. However, the EEOC does take the position that English-only policies tend to discriminate against workers on the basis of their national origin, which is a Title VII violation.

Discrimination is Alive and Well in America

May 16, 2017 | Adam S. Greenfield

Despite claims several years ago that we live in a post-racial, post-feminist society, discrimination is alive and well in America. There are several federal statutes that prohibit discrimination on the basis of membership in protected classes, but employers continue to treat employees in disparate ways based on their identities rather than merit. Many of the federal statutes are enforced by the Equal Employment Opportunity Commission (EEOC).

To bring a lawsuit under any of these statutes, you must first file a charge with the EEOC within the appropriate time window. The EEOC may investigate, and only after it issues a notice of right to sue can you pursue a remedy in court. The EEOC’s determination that it will not pursue your claim any further doesn’t mean that you haven’t been a victim of discrimination based on your membership in a protected category, and it may still be worthwhile to pursue recourse through civil litigation. Your damages under laws such as Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) are capped based on the size of your employer.

In 2016, the EEOC noted 9,308 charges were filed in Texas alone. This was 10.2% of the total charges filed in the United States and very slightly down from 2015, when 9,539 charges were filed in Texas. Of the charges filed in 2016 in Texas, 3,244 were based on race, 403 were based on color, 2,765 were based on sex, 1,190 were based on national origin, and 358 were based on religion.

Women deserve paid maternity leave (and so do men)

May 12, 2017 | Adam S. Greenfield

Half of the workforce is female, but only 12% of women have paid maternity leave, according to the United States Department of Labor. The United States is the only industrialized country around the globe that doesn’t require employers to provide paid maternity leave, even though studies show health benefits to children, mothers, and fathers when parental leave is provided. Paid maternity and paternity leave make sense both economically and from the standpoint of health.

Infant mortality is reduced by up to 10% in 141 countries with paid leave policies. This leave allows for infants to receive necessary medical care and vaccinations during one of their most vulnerable times of life.

Parental leave also increases how long mothers feel comfortable breastfeeding. Mothers who receive paid leave breastfeed for twice as long as those who don’t get leave. Since breastfeeding decreases the likelihood of infection, asthma, obesity, and SIDS, there are benefits for the health care system in improving the chances of a mother being able to breastfeed comfortably for a longer duration.