Dallas Employment Lawyer Blog

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.

Transgender employees need bathroom access

May 5, 2017 | Adam S. Greenfield

Most employees take it for granted that they will have access to a restroom. Recently, however, the news has shed light on the particular difficulties that transgender individuals face when they need to use the bathroom.

Texas legislators are considering a bill (Senate Bill 6) that would prohibit transgender individuals from using the bathroom that corresponds to their gender identity. This is a harmful measure that would potentially keep transgender individuals from being in public spaces. Supposedly, this is to protect cisgender individuals, but such laws support people’s private and unfounded prejudices, which has the effect of actually endangering transgender individuals.

Often, transgender individuals are confronted or otherwise treated with hostility, no matter which gender’s restroom they use. Employers are legally required to give their workers reasonable access to restrooms, and transgender employees must be able to access bathrooms in their workplace to be able to work and support themselves.

What will Neil Gorsuch mean for workers’ rights?

May 2, 2017 | Adam S. Greenfield

Neil M. Gorsuch has recently become the 113th justice of the United States Supreme Court. Republicans had refused to consider President Obama’s Supreme Court nominee, Judge Merrick Garland, claiming that the choice of a justice to replace Justice Antonin Scalia should belong to the president who succeeded Obama. Once Democrats filibustered, they altered the Senate rules in order to push Judge Gorsuch through. Appointed by President Trump and aggressively pushed through the confirmation process, Judge Gorsuch may be able to serve on the Court for 30 or more years and is likely to leave a lasting impression on the Court’s jurisprudence.

The confirmation is a potential disaster for workers’ rights. Although Judge Gorsuch is a highly esteemed judge, his past decisions show far more sympathy for corporations than their employees. He is highly likely to rule in a similar fashion in the future, although there have been Supreme Court justices in the past whose views shifted once they were on the bench.

Judge Gorsuch’s decisions during his decade-long tenure on the United States Court of Appeals for the 10th Circuit have shown he believes that corporations should have the same rights of religious freedom and free speech as people. This approach—placing corporations on the same playing field as human beings—has helped big business in the past and evinces little concern for workers and their lives.