Recognizing Employment Discrimination

If you were laid off at the same time as other people, but believe you were chosen because of your protected class status, it is possible that this was discrimination. If your employer decided to include you in the layoff because of a protected class like race, color, sex, or national origin, you experienced unlawful discrimination.

Some employers offer severance packages to employees who are part of a layoff. Those employees may have to sign a severance agreement that includes a release of claims. By accepting the severance package, you would be giving up any right to make a discrimination claim. You should carefully read any document your employer asks you to sign during a layoff. Better yet, you should let a lawyer review it before you sign.

In certain situations, an employer must give you information about how they chose employees for layoffs. The Older Workers Benefit Protection Act applies when the following events happen:

• The employer is laying off a group of workers all at once.
• It is offering severance payments to laid-off employees.
• The employees must sign a release of claims to get the severance payment.

An employer must provide the following information:

• The factors that it considered when choosing whom to lay off;
• The ages of the laid-off employees; and
• The ages of the employees who are keeping their jobs.

You can get more information on age discrimination from the EEOC or the TWC.

Texas law only addresses age discrimination against people who are at least 40 years old. An employer does not violate the law if they discriminate against someone because they are under 40. So if someone in their 20s applied for a job, but the employer did not hire them because they were too young, they are unlikely to have an age discrimination case. Visit the EEOC or TWC website for more information on age discrimination.

If your co-workers constantly call you names related to your protected class status and continue to do so even after you have told them that it upsets you, but they claim it is just in good fun, is this considered harassment?

Yes, this scenario sounds like harassment. Unlawful harassment often involves a pattern of offensive comments, jokes, etc., based on a protected class like race or sex. It can also involve a single severe act of hostility.

It does not matter if the people harassing you say it was “in good humor.” Hostile behavior becomes unlawful when it meets the following criteria:

• An objective person would find it offensive.
• It interferes with your ability to do your job.

Yes, this sounds like a hostile work environment, which is a type of sexual harassment. A hostile work environment involves unwelcome sexual behavior, such as jokes, remarks, or advances. Occasional sexual jokes are not enough tp support a sexual harassment claim. Ongoing behavior, such as daily sexual jokes or comments, could be unlawful. A single incident could also create a hostile work environment if it is severe enough.

An employer is liable for sexual harassment when it knows about the behavior but fails to act. In this case, you reported your concerns to HR. They did nothing about it. This could help your claim.

If you believe you have experienced unlawful discrimination, you must file a charge of discrimination with the EEOC or the TWC’s Civil Rights Division. The EEOC handles claims under federal laws like Title VII or the ADA. The TWC handles state law claims. You cannot file a lawsuit until you have filed a claim with one of these agencies.

You have a limited amount of time to file a charge of discrimination. Both the EEOC and the TWC require you to file within 180 days of the date the discrimination occurred.

You should also consider getting a lawyer to help you with your claim. The TexasLawHelp Legal Help Directory can help you find a legal aid organization or a private attorney.

Direct evidence of discrimination is rare but not impossible. For example, a supervisor might have written an email stating they do not want to hire an applicant because of their race, religion, sexual orientation, or other protected class.

Most discrimination cases are not as obvious. Proving discrimination can be a challenge. Employers can be quite good at providing reasons for an act that is not discriminatory. You might have to show that the reason your employer gave is not valid. For example, an employer might claim that they fired someone for excessive absences. The employee could produce records showing the employer had approved all the days they missed work.

Another way to prove discrimination is by showing that an employer treated members of a protected class differently than other employees. An employer might have strict enforcement of a policy on late work arrivals for members of a particular group. For everyone else, they rarely enforce the policy. This could show discrimination.