Discrimination at Work
This article discusses different types of discrimination that may occur in your workplace.
The EEOC and the TWC are two agencies within the government that have the responsibility to enforce the laws banning discrimination and retaliation in the workplace. The EEOC is a part of the federal government and enforces the federal laws. The TWC is a part of the state government and enforces the state laws. The federal laws and the state laws are very similar so these agencies, though they operate separately, do similar things. Their websites provide a lot of helpful resources and information.
One of the primary functions of these agencies is to investigate charges of discrimination and retaliation in the workplace. When an applicant or employee believes he or she has been discriminated or retaliated against, he or she must file a charge with one or both of these agencies. When a charge is filed, the agency where it was filed investigates the charge to determine whether or not there is reason to believe the person was discriminated or retaliated against. Once the agency completes its investigation, it issues its decision. The law requires any individual to file a charge and receive a determination before that individual may file a lawsuit in court.
Bad things can happen at work to most of us at different times. You may be fired, you may be demoted, you may have your pay cut. These actions alone are not unlawful. However, if any actions like these happen to you because of your race, your color, your national origin, your age, your gender, your disability, your sexual orientation, your gender status, or any other protected trait, characteristic or belief, then your employer has violated the law. There are more specific questions about discrimination below so keep reading.
If the bad thing that happened to you did not involve a specific employment action but instead involved threatening, offensive, harassing, or rude behavior towards you by a co-worker, a supervisor, or any person that you come into contact with as a part of your job, you may have a harassment case. Harassment is a form of discrimination. In Texas, behavior that is harassing is illegal so long as the harassment is motivated by a protected trait, characteristic or belief and is serious enough to interfere with job performance. For more information, read the EEOC page on harassment.
Sexual harassment is a specific type of harassment that is illegal. Sexual harassment happens when an employee is asked by a supervisor or manager to do something sexual in exchange for job protection or advancement or when an employee is subjected to a pattern of sexually-charged threatening, offensive, or harassing behavior during their job. There is a separate question about sexual harassment below. For more information, read the EEOC page on sexual harassment.
In Texas, it is against the law for your employer to take a negative employment action against you because of race, color, national origin, sex, gender, disability, religion, citizenship status, sexual orientation, gender status, or genetic traits. These are called "protected classes" because anyone belonging to these categories or having these traits is protected from job discrimination. This does not mean employers cannot take negative employment actions against people belonging to these protected classes. Instead, it means that an employer’s negative action cannot be motivated and or caused by an employee’s protected class status.
No, many different types of negative employment actions can be the basis of a discrimination case. This includes but is not limited to demotions, being passed over for a promotion, pay reductions; it may include a change in job assignments or shifts. It can also include an employer’s decision not to hire an applicant in the first place.
Not all negative employment actions, however, would make a discrimination case. The law was intended to target employment actions that have significant, tangible consequences, and so employment actions that cause minor or questionable consequences are not harmful enough to become a lawsuit. For example, changing the location of your workspace is probably not going to be significant enough to be the basis of a discrimination case.
Yes, it could be considered discrimination. If you were chosen to be included in the layoff because of your race, color, national origin, sex, sexual orientation, gender status, or any other protected class, then you were discriminated against. Some employers offer severance packages when laying off employees. If you received a severance package, you may have been asked to sign a severance agreement that included a release of any claims, including discrimination claims. You should carefully read any document that you are asked to sign at the time of a layoff.
In some cases, employees have direct evidence of discrimination such as an email connecting the action to the person’s race, color, national origin, sex, sexual orientation, gender status, or other protected class. For example, if a supervisor wrote in an email that they did not believe an employee of a certain race was right for a promotion because “his kind never performs well under pressure,” this would be clear evidence of discrimination.
Most cases, however, do not involve such clear evidence and so proving discrimination can be a challenge. In cases where the evidence is not direct, one way an employee can show an action was discriminatory is by showing that the reason the employer gave for the negative action was not true. For example, if an employer fires an employee for no call, no show, but the employee had asked and was approved for vacation, this could be evidence of discrimination. Another way is by showing that other employees not in the same protected class received different and better treatment or, in the example given, were not fired for no call, no shows.
Racial discrimination occurs when an employer, manager or supervisor makes a decision that negatively affects a person’s employment and that is based on that person’s race. Here are some made-up examples of racial discrimination in the workplace:
- A manager is deciding between two applicants and chooses to hire one because they are the same race as the manager.
- A manager decides to pay employees of a certain race less than others who are doing the same work.
- A new supervisor takes over supervision of a team and decides to impose tougher performance standards on an employee of a certain race than they do on the other employees.
Sex or gender discrimination occurs when an employer, manager or supervisor makes a decision that negatively affects a person’s employment and that is based on that person’s sex or gender. Here are some examples of sex or gender discrimination in the workplace:
- An employer hiring for a specific position only reviews applications from female applicants because they believe a female would be better suited for the job.
- An employer decides to pay female employees less than male employees for doing the same work.
- A supervisor decides to promote males over females because they believe males are less likely to take parental leave.
Sexual orientation or gender states discrimination occurs when an employer, manager or supervisor makes a decision that negatively affects a person’s employment and that is based on that person’s sexual orientation or gender status. Here are some examples of sexual orientation or gender status discrimination in the workplace:
- When a hiring manager interviews a candidate, they ask the candidate what he and his wife enjoy doing in their spare time. When the candidate answers what he and his husband enjoy hiking, the employer closes the interview and later decides not to hire the applicant because of his sexual orientation.
- A manager tells a transgender receptionist that they can no longer be the receptionist because customers had complained about their gender status but then offers them an office administrator position that pays less than the receptionist position.
- An employer offers employees a paid day off for their spouse’s birthdays as a fringe benefit but only does so for employees with heterosexual employees.
For more information on sexual orientation, visit the EEOC website here.
Pregnancy discrimination occurs when an employer, manager or supervisor makes a decision that negatively affects a person’s employment and that is based on that person’s pregnancy. Here are some examples of pregnancy discrimination in the workplace:
- During an interview, a candidate discloses that she is 3 months pregnant. The hiring manager asks whether she plans to take parental leave and when the candidate says yes, the hiring manager closes the interview then later decides not to offer the candidate the job because of her parental leave plans.
- A pregnant worker asks her supervisor if she can take a break every hour to walk around to relieve pain in her back. Her supervisor refuses this but the employer does allow employees with medical impairments to do this.
For more information on pregnancy discrimination, visit the EEOC website here.
If an employer is laying off a group of employees at the same time, and is asking employees to sign a release of claims in exchange for a severance payment, the employer must provide certain information to the laid off employees regarding the factors used in making the layoff selections and the ages of those chosen and not chosen for the lay off. The law is called the Older Workers Benefit Protection Act. For more information on age discrimination, visit the EEOC website here and the TWC website here.
First, employers may not discriminate against employees because of their religion. This means that your religion should not motivate or cause any negative employment action such as not being hired or being fired.
Second, when it comes to religion, the law requires employers to provide reasonable accommodations to employees whose sincerely held religious beliefs prevent them from performing or fulfilling some aspect of their job. An employee whose religion requires her to wear a headdress, for example, should be allowed to wear the headdress even if her employer’s dress code says “no head coverings allowed.” Employers must grant reasonable accommodations for religion unless they pose an undue hardship or a direct threat to the safety of the employee or others.
You may be. The law, called the Americans with Disabilities Act, says that a disability is a physical or mental impairment that substantially interferes with one or more major life activities. The law also covers individuals who are regarded as having a disability or who have a history of having a disability. This is a broad definition, and it has been interpreted broadly. Just because you have a disability, however, does not mean you have full job protection. The law requires that individuals with disability be qualified and able to perform the job they have or the job they are applying for either with or without a reasonable accommodation. This means that if an individual either is not qualified or cannot perform the essential functions of a job, he or she is not protected from job loss under the law. For more information on disability discrimination, visit the EEOC website here and the TWC website here.
First, individuals with disabilities have a right to be free from discrimination. The right to be free from discrimination means that employers cannot take negative employment actions against an employee because of a disability so long as that employee can perform the essential functions of the job. So, a person in a wheelchair cannot be passed over for a job that does not require any standing simply because the person is in a wheelchair.
Second, applicants and employees with disabilities have a right to receive a reasonable accommodation that enables them to perform the essential functions of the job. Applicants and employees have a right to request an accommodation and then the employer and the applicant/employee must engage in an interactive process to determine what accommodation will best fit the situation. To sum up, employers can require that employees be able to perform the essential functions of a job, but must provide reasonable accommodations to enable a person with a disability to do so. There is a separate question and answer on reasonable accommodations.
A reasonable accommodation is a modification to job duties, work schedule, or the physical work space that enables the applicant or employee to perform the essential functions of the job. Qualified applicants or employees are entitled to reasonable accommodations that enable them to perform their jobs as long as the accommodation does not impose an undue hardship on the employer. If you need a reasonable accommodation for a disability, your employer has an obligation to work with you to figure out whether your request to work from home will be granted. The law, which is called the Americans with Disabilities Act, requires your employer to discuss your request with you in a process called the interactive process. Both you and your employer must engage in good faith to consider and discuss the particular set of circumstances and the possible accommodations. While each employee’s situation is different, every employer must discuss and consider a request for an accommodation due to a disability, and must grant accommodations that are reasonable and enable the employee to do his or her job.
As part of the process, you may be asked to provide information from your healthcare provider about your medical condition and the limitations or restrictions you have because of your medical condition. Employers are not allowed to ask for more medical or health information than they need in order to figure out whether to grant your accommodation request though. If you think your employer is asking for too much medical information, you should reach out to an attorney to discuss what information employers can and cannot ask for.
The law banning discrimination based on genetic information is called the Genetic Information Nondiscrimination Act. It prohibits employers from making any decisions that negatively affect an individual’s employment based on that individual’s genetic information or family medical history. The law is intended to protect the confidentiality of genetic information and to prevent employers from making employment decisions based on guesses or assumptions about health based on genetic information or family medical history. For more information, visit the EEOC website here.
Yes, it sounds like it would be. Unlawful harassment can either be a single severe act of aggression or hostility based on a person’s protected class status or a pattern of small comments, jokes, gestures, etc. that are offensive and based on a person’s protected class status. In order to be unlawful, the offensive or hostile behavior must bother the person being harassed enough that it interferes with job performance, and it also must be the type of behavior that would offend an ordinary person. Daily jokes, comments, or other references that are based on protected class status and that are offensive and don’t stop can be unlawful harassment.
Yes, it sounds like it would be. Sexual harassment occurs when a person is on the receiving end of offensive or hostile behavior in the workplace that is not welcomed and is of a sexual nature. Sexual harassment can be unwelcomed sexual advances, requests for sexual favors, unwelcomed physical contact; it can also be offensive verbal, visual or written contact that is sexual in nature, frequently-occurring, and not reciprocated. The law does not make an employer liable for sexually offensive behavior that is infrequent, isolated, or minor and so offhand remarks, simple teasing or isolated minor incidents may not be sexual harassment under the law. That said, even minor incidents, offhand remarks or simple teasing can rise to the level of sexual harassment if the employer fails to respond to an employee’s good faith, substantiated complaint.
With few exceptions, the employment discrimination laws cover employers with more than 15 employees. One exception is the Age Discrimination in Employment Act, which covers employers with more than 20 employees. Another is the law prohibiting discrimination based on citizenship status, which is the Immigration and Nationality Act; it covers employers with 4 or more employees.
Federal law and state law apply in Texas to employment situations. The state law is found in Chapter 21 of the Texas Labor Code. The federal law that prohibits discrimination on the basis of race, color, national origin, sex, gender, sexual orientation, gender status, and religion is Title VII of the Civil Rights Act of 1964, as amended. The federal law that prohibits discrimination on the basis of age is the Age Discrimination in Employment Act. The federal law that prohibits discrimination on the basis of the disability is the Americans with Disabilities Act. The federal law that prohibits discrimination on the basis of genetic information is the Genetic Information Non-discrimination Act.
No. The law forbids employers from taking any negative employment action against an employee because of the employee’s complaint. This is called retaliation, and it is illegal. You also don’t have to be fired to have a retaliation complaint. If your employer takes any negative action against you that was meant to dissuade you or others from making any more protected complaints, it would be considered retaliation.
Texas and federal law both require a person who believes they have been retaliated against for making a protected complaint of discrimination to file a charge of discrimination with either the Equal Employment Opportunity Commission or the Texas Workforce Commission, Civil Rights Division. This must be done before a lawsuit may be filed. And, it must be done within a certain time period after the discriminatory action took place so act fast. You should also consider retaining a lawyer to represent you.
Texas and federal law both require that any person who believes they have been discriminated against in employment file a charge of discrimination with either the Equal Employment Opportunity Commission or the Texas Workforce Commission, Civil Rights Division. This must be done before a lawsuit may be filed. And, it must be done within a certain time period after the discriminatory action took place so please act fast! For more information on time limits, read the EEOC webpage here and the TWC page here.
You should also consider retaining a lawyer to represent you. Use the TexasLawHelp Legal Help Finder to find legal aid organizations and private attorney referral organizations who may be able to help.