Texas v. New York: Which state offers more protections to employees? The answer will not surprise you.

It is no secret that in the past few years companies have been moving their principal places of business from progressive states, like California or New York, to Texas. Texas has been known as a “business-friendly” state, and for good reasons. Among other things, Texas has a healthy economy, a prime location in the center of the country, no state income tax, and affordable cost of living.

One major factor that doesn’t receive much publicity is Texas’s far less-restrictive labor & employment laws. After all, a company relocating thousands of its employees to work in Texas means a lesser risk of violating more restrictive laws in states like California or New York.

So how is Texas different from other progressive states when it comes to employee rights? To answer this, let’s explore some of the labor & employment laws of the state of New York.

One main similarity both Texas and New York have is that they are at will employment states. This means in both states there is no such thing as a “wrongful termination” lawsuit. For the employee to sue, the termination must not only be wrongful, but it also must have violated a law (or a contract). This is where there are huge differences between Texas and New York. There are far more laws, so to say, that protect employee rights in New York than in Texas. For purposes of this article, we’ll focus on discrimination laws in both states.

Texas v. New York Discrimination Laws:

Texas Labor Code prohibits discrimination based on race, color, disability, religion, sex, national origin, or age. On the other hand, New York’s Human Rights Law, in addition to the categories protected under Texas law, prohibits discrimination based on creed, sexual orientation, military status, predisposing genetic characteristics, marital status, or status as a victim of domestic violence.

In addition to broader “protected classes,” New York’s protections reach far more individuals and cover virtually every employer. Under Texas Labor Code, only “employees” are protected from discrimination. Conversely, New York’s Human Rights Law doesn’t just protect employees, but also non-employees such as contractors, subcontractors, vendors, consultants, and paid and unpaid interns. As of February 2020, New York’s discrimination laws apply to every employer, regardless of the size. Texas’ discrimination law applies only to employers with 15 or more employees, although the Texas legislature recently expanded sexual harassment claims to cover employers with one or more employees and added individual liability for supervisors accused of sexual harassment.

Under Texas law, the statute of limitations for a discrimination claim is 180 days (recently expanded to 300 days for sexual harassment claims). Under New York law, a plaintiff has up to 3 years to file a discrimination claim. Perhaps one major difference is the “exhaustion of administrative remedies” requirement. Under Texas (and federal) law, an employee must file a charge of discrimination with the EEOC and/or the Texas Workforce Commission before being able to file a lawsuit in court. In New York, a plaintiff has a choice: file suit in court immediately or file a charge with New York’s Division of Human Rights.

In addition, while both states allow a plaintiff to recover compensatory damages for pain and suffering and emotional distress, New York allows for unlimited damages. On the other hand, Texas caps these damages at a figure between $50,000 and $300,000 depending on the size of the employer.

Although both states prohibit discrimination based on race, disability, religion, sex, national origin, and age, the definition and applicability of these categories are far broader under New York law. For example:

  • In New York, “race” also means ancestry, color, ethnic group identification, and ethnic background traits historically associated with race, including, but not limited to, hair texture and protective hairstyles (like braids, locks, and twists).
  • For age discrimination, New York law protects individuals age 18 or older. Texas law (like federal law) only protects those employees who are age 40 or older.
  • Under New York law, to succeed on a harassment or a hostile work environment claim an individual need only show that the conduct rose above the level of “petty slights and trivial inconveniences.” This is a significantly lower standard than Texas’ “severe and pervasive” standard to prove harassment.

If an employee or other covered individual happens to reside or work in New York City, then they probably have even broader protections than the ones offered by the state of New York. For example, NYC law adds more “protected classes” by prohibiting discrimination base on alienage or citizenship status, conviction and arrest record, caregiver status, unemployment status, partnership status (e.g., domestic partnerships), victim of domestic violence status, and victim of sex offenses or stalking status. NYC laws also require employers to reasonably accommodate the needs of victims of domestic violence, sex offenses, or stalking. NYC law also expressly prohibits discrimination based on an actual or perceived protected characteristic and protects individuals who have a “known relationship or association with someone who has or is perceived to have the protected characteristic.” Finally, NYC law makes it illegal to “aid and abet” discrimination.

Whether you work in Texas or New York there are some basic human rights that your employer may not violate. Always consult with an experienced employment attorney if you suspect your employer may be violating the law.

  • Fadi Yousef is an attorney licensed to practice in the state of Texas and the state of New York.
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