employment discrimination under texas and federal law -- overview

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L E G A L A D V I C E

Employment discrimination

What is employment discrimination?

ILLEGAL employment discrimination occurs when an employer takes an “adverse employment action” against an employee or job applicant on the basis of a “protected status”.

What is an “adverse employment action”?What is a “protected status”?

Anything not prohibited by law is fair game.

Adverse employment Action

A materially significant disadvantage with respect to the terms or conditions of employment.

Includes: firing, demotion, failure to promote, failure to hire, pay cuts, removal of job duties, removal of title, reassignments, cutting hours

Protected status

Any status that the law prohibits discrimination against. Includes both “immutable traits” such as race or sex as well as the exercise of statutory rights.

Protected Statuses

The protected statuses or classifications arise from statute and ordinances at the federal, state and local level. Until statute recognizes a status or classification of people are protected from employment discrimination, the employer is free to discriminate against them.

Immutable traits

The majority of employment discrimination laws prohibit discrimination on the basis of “immutable traits”: traits that are fundamental to who a person is and cannot be easily changed. Most of these are fairly obvious.

Race/Ethnicity

Title VII, Section 1981 of the 1866 Civil Rights Act ( both federal) and Chapter 21 of the Texas Labor Code prohibit discrimination on the basis of race/color and ethnicity. Race and ethnicity are not necessarily the same thing.

National origin

Title VII and Ch. 21 of the Texas Labor Code prohibit discrimination on the basis of national origin – both where you were born and where your family comes from. Also not necessarily the same as race or ethnicity.

Commonly occurs when employers enact unnecessary “English-only” rules.

Religious discrimination

Title VII and Ch. 21 prohibit discrimination on the basis of your religion. Includes normal discrimination theories but also requires employers to provide reasonable accommodations for religious practices.

Religious discrimination

Religious accommodation is one that eliminates the conflict between employment and religious beliefs without creating an undue hardship for the employer.

Undue hardship is easy to meet. Supreme Court says “minimal costs” meets the burden.

Disability discrimination

Americans with Disabilities Act (and 2008 amendments) and Ch. 21 prohibit discrimination against a qualified individual with a disability who can perform the essential functions of the job with or without a reasonable accommodation. Must prove the employee or applicant is a qualified individual with a disability and can perform the essential functions of the job. Like religious discrimination, includes a reasonable accommodation requirement.


What is a disability:A physical or mental impairment that

substantially limits one or more major life activities (sleeping, thinking, eating, walking, etc. – but not working)

Factors to consider:Nature and severity of impairmentHow long it will lastPermanent or long term impact


Person with disability:Has physical or mental impairment that

substantially limits one or more major life activities; or

Has a record of a disability; orIs regarded as having a disability.


Qualified person with a disability: has all the attributes necessary to perform the job with or without a reasonable accommodation

Can the individual perform the essential functions of the job?

If not, can the individual perform the essential functions with a reasonable accommodation?

If yes to either, then meets definition.


Essential functions of the job:Position exists to perform function;Limited number of employees can perform

those duties; andFunction is highly specialized and person is

hired to perform it.


Reasonable accommodation for disability more generous to employees than for religious practices. Same language of “undue hardship” but employer must show substantial expense or difficulty. Employer also has a duty to engage in a proactive discussion about reasonable accommodation.

Genetic information discrimination

Genetic Information Nondiscrimination Act (GINA) prohibits discrimination on the basis of genetic information. For employment, usually relates to genetic disorders or disorders passed through one’s genes. Also includes discrimination on the basis of a family member’s genetic information.

Age discrimination

Age Discrimination in Employment Act (ADEA) and Ch. 21 prohibit discrimination on the basis of age against employees age 40 and over. No protection for younger employees, which means employers can act favorably towards older employees.

Sex discrimination

Title VII and Ch. 21 prohibit discrimination on the basis of sex and gender. Sex relates to one’s biology (man, woman). Gender relates to stereotypes of appearance, behavior and duties of each sex (male, female). Includes discrimination against transgender individuals because they do not conform their appearance to their biological or birth sex. Does not include sexual orientation.

Sex discrimination

Federal Pregnancy Discrimination Act also prohibits discrimination against pregnant mothers on the basis of their pregnancy. Includes a requirement that employers give pregnant mothers the same light duty requirements and leave time as other employees with short term disabilities. Does not require greater preferential treatment.

Sexual Orientation Discrimination

In Texas, neither federal or state law prohibits discrimination on the basis of sexual orientation. However, several of the larger cities have passed local ordinances prohibiting discrimination on the basis of sexual orientation or gender identity. These laws are limited to the city limits.

NOT Protected Statuses

Poverty/wealthWhat state you come fromWhat sport teams you might root forPolitical affiliationWhether you drink (unless it implicates your

religion, pregnancy, or disability)Where you went to collegeWho you associate with (as long as it does not

also implicate a protected status)

But MAYBE…

EducationCriminal background

Stay tuned…

Ways Employers Discriminate Against Protected Statuses

Disparate treatmentDisparate impactFailure to accommodateHostile work environment/harassmentRetaliation

Disparate Treatment

Different treatment; intentionally treating an employee or applicant less favorably than others on the basis of the person’s protected status. Disparate treatment must result in an adverse employment action. Must show discrimination was “because of” the protected status.

Compare the person complaining of discrimination against “similarly situated persons” to prove different treatment. For example, white applicant claims not hired because white, look to see if other white applicants with similar qualifications were hired.

Common Defenses to Disparate Treatment

Bona Fide Occupational Qualification: employer intentionally discriminates but does so because some part of the job legitimately requires discrimination Example: Asian restaurant requires Asian chefs for

“authenticity” is a BFOQ and permits discrimination against non-Asian chefs.

Only available against claims based on age, sex and national origin. NEVER acceptable on race or ethnicity claims.

Common Defenses to Disparate Treatment

Business Necessity: employer’s policy is based on a legitimate business purpose. Normally safety-based justification. Example: Deaf applicant denied for U.S. marshall

because the ability to hear is a necessity for the safety of the marshall and others. Although the applicant could use a hearing aid (a reasonable accommodation) the aid could fail. The danger to the public and the applicant was a legitimate business concern.

Disparate Impact

An employer’s policy or procedure is neutral on face but has a discriminatory impact on employees or applicants with a protected status. Most difficult theory to understand and on which to prevail. Requires statistical analysis.

Example: employer has neutral height/weight requirements for job that has the effect of disproportionately eliminating women applicants because they are not tall enough and do not weigh enough. That policy, although not intentionally discriminatory, has the effect of discriminating against women.

Disparate Impact

EEOC says educational requirements and criminal background checks can result in a disparate impact on some racial and ethnic minorities because they tend to be disproportionately less likely to have high school or college educations and more likely to have arrest and conviction records. EEOC argues employer’s requirements are not always related to a legitimate business purpose (business necessity) so the disparate impact is illegal. So far EEOC has not gotten very far with these arguments.

Common Defenses for Disparate Impact

Business necessity: same as disparate treatment. Prove the policy has a legitimate business justification even if it has a discriminatory effect.

Disprove/discredit statistics. Reasonable Factors Other than Age (RFOA):

Basically same as business necessity but lower standard for age-based disparate impact cases. Probably enough to show employer had a “good reason” for the policy.

Failure to Provide Reasonable Accommodation

Religious discrimination:Employee must proactively request accommodation.Employer must grant a reasonable accommodation

unless there is an undue burden. Standard is so low employer is always going to win unless the accommodation had zero burden to employer.

Employee does not have to get accommodation requested, just a reasonable one.

Once informed, employer has duty to engage in interactive process with employee to find a reasonable accommodation

Failure to Provide Reasonable Accommodation

Disability discrimination:Same premise but employer must show undue

hardship is a substantial burden. Employee is more likely to defeat employer’s argument that no reasonable accommodation was available.

Both:Failure to engage in the interactive process is

enough to prove discrimination claim, even if no reasonable accommodation would have been likely. Interactive process is mandatory.

Harassment

Harassment occurs when: The employee suffered unwelcome, offensive

conduct that is severe or pervasive (hostile work environment); or

Enduring the offensive conduct becomes a condition of continued employment (quid pro quo).

Harassment

Quid pro quo: enduring the offensive conduct becomes a condition of continued employment.

Supervisor requires the employee to do something/not do something to keep a job, get a raise, get a promotion, etc.

Generally only applies to sexual harassment where supervisor wants the subordinate to engage in romantic or sexual activity with the supervisor or somebody else

Harassment

Hostile work environment: unwelcome, offensive conduct that is severe or pervasive.

Not a general civility code; has to be more than petty comments or stray, isolated comments

Must be both objectively and subjectively offensiveSevere or pervasive:

Severe: usually refers to unwelcome touching; can be a single event (e.g. attempted sexual assault)

Pervasive: ongoing behavior Does not have to be directed at the employee

complaining, the employee need only be exposed to itPerpetrator can be supervisors, co-workers,

contractors/vendors and customers

Liability for Harassment

Tangible employment action:Some adverse employment action is taken by

a supervisor Can be quid pro quo or part of a larger

hostile work environmentConstructive discharge (see next slide) plus a

non-termination adverse employment action will result in the constructive discharge being treated as a tangible employment action


No tangible employment action:Employee does not have to suffer tangible employment

action but must prove hostile work environment (severe or pervasive) was so objectively offensive that it altered the conditions of employment (circular definition: conditions are altered if it is severe or pervasive)

Same standard for constructive discharge but employee can prevail without quitting

No bright line test; look at each case based on specific facts

Constructive discharge with no adverse employment action – have to show employee quit due to altered conditions of employment


Quid pro quo: employer is strictly liable because the supervisor used his or her authority as an agent of the employer to affect discrimination. Agent stands in the shoes of the principal (employer).

Tangible employment action in hostile work environment: Same standard.

No tangible employment action: liable if employee proves severe or pervasive and employer cannot raise affirmative defense


No tangible employment action:Non-supervisor perpetrators: employee must

prove employer was negligent in allowing harassment to continue Employer knew or should have known about

harassmentSupervisory perpetrators: employers have

Ellerth/Faragher affirmative defense

Ellerth/Faragher Affirmative Defense

Employer is not liable if:1. It reasonably acted to prevent and correct

harassment; and2. Employee unreasonably failed to take

advantage of the employer’s preventative or corrective procedures

If following procedures would be futile then employee does not have to follow employer’s procedures

Retaliation

Employer attacks employee for complaining about discrimination

1. Employer takes adverse action or engages in harassment;

2. Of a covered person;3. For engaging in a protected activity

Retaliation claims can prevail even if the underlying discrimination allegation is unproven or is even disproven

Retaliation

Adverse action or harassment: punishing or intimidating employee

Covered person: Person who was target of discrimination and complained, person who participates in an investigation of discrimination, person who complained of discrimination even if not the intended target of discrimination and people who are retaliated against as a collateral attack on a person complaining of discrimination or participating in a discrimination investigation

Retaliation

Protected activity: 1. Opposing discrimination: complaining,

threatening to file discrimination charge, refusing to discriminate against another employee

2. Participating in an employment discrimination proceeding: participating in an internal or external investigation, filing a charge, testifying in a deposition or trial

Switching Gears

All protected status/classification-based discrimination is commonly thought of as “employment discrimination” but many other employment-related statutes have anti-discrimination provisions that prevent retaliation for exercising certain statutory rights or participating in investigations of illegal activity. These anti-discrimination provisions are normally not thought of as part of “employment discrimination” but should be thought of in the same context because the same harassment and retaliation frameworks apply

Beyond Protected Statuses

Generally only going to prevail on these provisions when employee exercises statutory right/participates in investigation and employer retaliates through an adverse employment action or creates a hostile work environment.

No disparate impact, reasonable accommodation, but limited disparate treatment application.

Next few slides are common anti-discrimination provisions—but not exhaustive list

Employee Retirement Income Security Act

ERISA protects most private employer benefit plans.

Prohibits retaliation against employees who attempt to exercise rights under ERISA-protected benefit plans (such as demanding payment of health care benefits).

Also prohibits terminating employees to avoid vesting in benefits (such as terminating employees before they can reach vesting in pension benefits).

National Labor Relations Act

Protects rights of employees to engage in “concerted activity” to improve work conditions (unionize).

Prohibits retaliation for exercising statutory rights (joining union, soliciting for union representation, stating pro-union views) and participating in investigation of violations of the NLRA.

Also prohibits discrimination in hiring/promotion on the basis of pro-union beliefs or prior union involvement.

Occupational Safety & Health Act

OSHA protects worker safety in the workplace.

OSHA prohibits retaliation for employee internal or external whistleblowing on OSHA violations.

Also prohibits retaliation for participating in internal or external investigations of violations.

Workers Compensation

Workers compensation is a no-fault system of compensating employees for workplace injuries.

Texas Workers Compensation Act prohibits retaliation for exercising statutory right by filing claim for workers compensation benefits.

Also prohibits retaliation for participating in investigation of a workers compensation claim.

Family Medical Leave Act

FMLA protects short term medical leave to care for employee or family member (typically 12 weeks).

Prohibits retaliation against employee who requests FMLA leave or takes FMLA leave.

Fair Labor Standards Act

FLSA and Texas Payday Act protect rights to minimum wage, overtime pay and various other pay-related claims.

Prohibits retaliation for making internal or external wage claims for missed/late/unpaid wages.

Also prohibits retaliation for participating in internal or external investigation of wage claim.

Whistleblowing Protections

Various other federal and state laws prohibit retaliation for internal and/or external whistleblowing. Typically also prohibit retaliation against employees who participate in internal and external investigations of the alleged illegal activity.

For example:Sarbanes-Oxley protects whistleblowing on certain

finance-related activities;Clean Air Act protects whistleblowing on violations

of emissions standards.

Sabine Pilot

Texas common law protection for employees who refuse to engage in a criminal act when the employer demands the employee perform the criminal act or be fired.

Also protects employee placed in that decision when the employee contacts a lawyer or government agency to determine the criminality of the requested act.

employment discrimination under texas and federal law -- overview

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