Employment Discrimination & Retaliation
Employers are constantly making sloppy and unlawful discriminatory and retaliatory employment decisions that violate federal and state laws. Texas is an at-will employment state, which means that employers can terminate employees for a good reason, bad reason, or no reason. But, when employers terminate or demote employees because of their membership in a legally-protected class, they may violate state or federal laws and employees could potentially have a claim.
Unlawful discrimination, harassment and retaliation in violation of state and federal laws happen more often than you think. If you feel that you’ve been the victim of discrimination at work, you may have strict filing deadlines to comply with in order to preserve your rights under state and federal law.
What Rights Do I Have?
Title VII of the Civil Rights Act of 1964 prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or national origin. This law is enforced by the Equal Employment Opportunity Commission (EEOC).
Some of the legally protected areas that our firm practices in are the following:
Race and National Origin Discrimination – When an employer considers your race or your national origin to make a discriminatory employment decision, it has violated State and Federal laws. An employer typically cannot use your race or national origin to demote you, transfer you, terminate you or make any other retaliatory or discriminatory employment action. If you feel you’ve been singled out due to your race or national origin, you have strict deadlines to comply with to preserve your rights under State and Federal law.
Age Discrimination – Unfortunately, when the economy is challenging and employers need to downsize their workforce, older workers are the first to go, regardless of their experience or seniority within the company. The Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, terms, conditions or privileges of employment. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC). If you feel you’ve been singled out due to your age, you have strict deadlines to comply with to preserve your rights under State and Federal law. Call or e-mail our office soon to make a free appointment with an attorney to determine your rights.
Sexual Harassment/Discrimination – Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser’s conduct must be unwelcome.
It is important for you to report any sexual harassment or discrimination occurring in your workplace to your superiors or their superiors. The law typically allows an employer to correct the situation before you can bring a claim.
Sex Based Discrimination – Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the basis of sex. It is unlawful to discriminate against any employee or applicant for employment because of his/her sex in regard to hiring, termination, promotion, compensation, job training, or any other term, condition, or privilege of employment. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals on the basis of sex. Title VII prohibits both intentional discrimination and neutral job policies that disproportionately exclude individuals on the basis of sex and that are not job related.
The Equal Pay Act of 1963 requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Title VII also prohibits compensation discrimination on the basis of sex. Unlike the Equal Pay Act, however, Title VII does not require that the claimant’s job be substantially equal to that of a higher paid person of the opposite sex or require the claimant to work in the same establishment.
Disability (ADA) Discrimination – Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (“ADA Amendments Act” or “Act”). The Act emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. The Act makes important changes to the definition of the term “disability” by rejecting the holdings in several Supreme Court decisions and portions of EEOC’s ADA regulations. The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.
Pregnancy Discrimination – The Pregnancy Discrimination Act is an amendment to Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations. Title VII’s pregnancy-related protections include hiring, pregnancy and maternity leave, health insurance and fringe benefits.
FMLA Violations – The Family and Medical Leave Act (FMLA) provides job protection for workers who are unable to adequately perform their jobs due to their own serious health condition or the serious health condition of a family member. The law provides you with up to 12 weeks of unpaid leave to address the health crisis without fear of losing your job. You do not have to take all 12 weeks, nor must the 12 weeks be taken consecutively. After you have returned from your medical leave, your employer is required to place you back in the same position as before you left. If this is not possible, you must be placed in a position with similar responsibilities and pay.
Unfortunately, not all employers comply with this law and you may find that you have been demoted or that your employer retaliated against you in another way for exercising your FMLA rights. This is especially true in situations involving pregnancy, where a combination of improper FMLA implementation and pregnancy discrimination may deny an employee the leave allowed under the law.
Wrongful Termination/ Workers Compensation Retaliation - Texas Labor Code § 451.001 provides: A person may not discharge or in any other manner discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; (3) instituted or caused to be instituted in good faith a claim for workers’ compensation benefits; or (4) testified or is about to testify in a proceeding for workers’ compensation benefits. The Legislature’s purpose for enacting section 451.001 was to protect people who are entitled to benefits under the workers’ compensation laws and to prevent employers from firing them for taking steps to collect benefits.
At trial, the employee must prove that but for the filing of the workers’ compensation claim the discharge would not have occurred when it did. The employee need not prove that retaliation was the sole cause of his or her termination. Rather, they must show that, “but for” the filing of the claim, the discharge would not have occurred when it did.
Several nonexclusive factors have been recognized as circumstantial evidence sufficient to establish a causal link between filing a compensation claim and subsequent termination of employment, including (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and, (5) evidence that the stated reasons for the discharge was false.