Employment Discrimination Part 1

Identifying, Preventing and Addressing Discrimination and Harassment in the Workplace (Part 1)

In the context of employment law, discrimination and harassment can arise in many obvious and non-obvious forms. For many employees, it is difficult to pinpoint exactly when, where and how they are being treated unfairly, harassed or discriminated against in the workplace. Oftentimes, we simply get a gut feeling that things are “not right.”

In a day and age where corporations are considered “people” under the law and employers in Texas are entitled to terminate employees “at-will,” it is imperative that each of us understand our basic rights when we go to work. As the first post in a series addressing employment discrimination and harassment, this article should serve as a broad introduction to the federal legal protections granted to employees and as a quick guide to identifying discriminatory or harassing behavior.

What is “at-will” employment?

In the State of Texas, the employee-employer relationship is “at-will,” but what exactly does that mean for the average employee?

To understand the concept of at-will employment, you must first recognize the political and business climate in Texas. For many decades now, Texas has been an extremely business-friendly state; that is, the laws and regulations that are instituted in Texas are highly protective of employers (e.g., businesses, bosses and corporations). If you’re looking to work in a state with multiple safeguards and security for employees, you should probably move to California or New York.

Under Texas law, an employer can terminate your employment (i.e., fire you) for good cause, bad cause or no cause at all without any prior warning. To help explain, this means that even if your employer has written policies and procedures regarding disciplinary warnings and/or termination procedures, your employer does not have to follow these policies and procedures before terminating your employment under Texas law.

However, it isn’t all doom and gloom for employees in Texas, there are still a great number of protections that each of us enjoy by way of federal, state and municipal laws regulating the way that employers treat and interact with employees.

What are the basic federal laws protecting my rights?

At the federal level, the Civil Rights Act of 1964 (“Civil Rights Act”) prohibits an employer from discriminating against or harassing employees on the basis of race, color, religion, sex or national origin in all employment decisions.

Examples of common employment decisions include:

  • Hiring or firing
  • Compensation
  • Job assignments
  • Promotions
  • Training
  • Fringe benefits

In the context of employment harassment, common examples may include:

  • Racial or religious slurs
  • Offensive or derogatory remarks about an employee’s race, color, religion, etc.
  • Display of offensive symbols in the workplace (e.g., Confederate flag, Nazi swastika)
  • Unwelcome sexual advances (verbal or physical)
  • Requests for sexual favors or inappropriate sexual comments
  • Inappropriate or derogatory remarks about an employee’s sexual orientation or gender identity

Shortly after the passage of the Civil Rights Act, Congress extended protections for certain employees with the Age Discrimination in Employment Act of 1967 (“ADEA”). Under the ADEA, an employer is prohibited from discriminating against or harassing an employee based on that employee’s age. According to the Equal Employment Opportunity Commission (“EEOC”), age discrimination complaints accounted for over 20% of all Texas complaints in 2015. However, to qualify for protection under the ADEA, an employee must be at least 40 years old.

Examples of age-based discrimination or harassment may include:

  • Terminating a senior employee and replacing her with a much younger individual
  • Unfair promotions that are suspect to age discrimination
  • Unjust severance compensation at termination

Passed by Congress in 1990, the Americans with Disabilities Act (“ADA”) finally provided much-needed employment protections for individuals with disabilities. Although the ADA prohibits discrimination against disabled individuals in all areas of public life, it is Title I of the ADA that applies directly to the employee-employer relationship.

Title I of the ADA requires that “reasonable accommodations” be given to qualified applicants or employees that enable them to have the same access and ability to perform as individuals without disabilities. That said, what exactly is a “reasonable accommodation”?

A reasonable accommodation is, essentially, a range of modifications or adjustments that can reasonably be made to a job or the employee’s work environment that will empower or enable the disabled employee to fairly engage in the application process or the primary functions of a job.

Examples of reasonable accommodations may include:

  • Inclusion of a TDD (telecommunications device for the deaf) number in a job advertisement
  • Preparation of training or other work materials for individuals with vision impairment
  • Reconfiguration of office furniture to make safe walkways for blind or wheelchair-bound individuals
  • Providing supervisor feedback to an employee who communicates more effectively through written materials
  • Providing a sign language interpreter for individuals who are hearing impaired

In addition to laws codified by Congress, the EEOC has passed a number of rules and regulations that govern the employee-employer relationship. Foremost of these is the prohibition of retaliation (i.e., punishment) against employees for asserting their rights to be free from discrimination in the employment context, including harassment. When an individual complains about these rights being violated, this is called a “protected activity.”

To give several examples, it is against EEOC regulations to retaliate against an employee for:

  • Submitting or acting as a witness to an EEOC charge, complaint, investigation or lawsuit
  • Refusing to participate in or follow orders that would result in discrimination or a violation of the law
  • Raising concerns regarding sexual advances made against the employee or a colleague
  • Submitting a request for accommodation of a disability or religious practice

Although an employee’s participation in the complaint process is protected under any and all circumstances, an employer is free to terminate an employee so long as the reason for termination is based on non-retaliatory and non-discriminatory reasons. However, it is important for an employee to recognize and specifically document each time that she has been the victim of retaliation.

Specific examples of employer retaliation against a complainant-employee include:

  • Removing an employee from her current position and placing her in a less-desirable job
  • Verbally or physically abusing an employee for filing a complaint
  • Increased scrutiny (e., increased or constant job oversight)
  • Reprimanding or unfairly giving an employee a performance evaluation that is lower than it should be
  • Creating a hostile work environment for the employee
  • Disseminating falsities or destructive rumors about an employee