Discrimination, the EEOC and Texas Workforce CommissionFighting discrimination in Texas and nationwide Our heritage as Americans provides us with many freedoms and among them is the freedom from discrimination or harassment in the workplace. Workplace discrimination and harassment has been so pervasive that Congress has passed numerous laws to protect workers against discrimination. Most states (including Texas) eventually followed the lead of the federal government and legislated to prohibit discrimination. It was under such anti-discrimination law that Texas established the Texas Workforce Commission (TWC) Civil Rights Division to enforce state laws on employee rights.
Title VII of the Civil Rights ActThe cornerstone of most discrimination laws, Title VII of the Civil Rights Act of 1964 protects employees from discrimination in employment based on race, color, national origin, religion, and sex (including pregnancy and sexual harassment)—if an employee works for an employer with 15 or more employees. The Civil Rights Act of 1991 allows jury trials and the possibility of mental anguish and punitive damages totaling up to $300,000 for intentional acts of discrimination. Title VII also protects employees from retaliation for opposing any unlawful employment discriminatory practice or for making a charge, testifying, assisting, or participating in any manner in a discrimination investigation, proceeding, or hearing.
Equal Employment Opportunity Commission (EEOC) and TWC claims processTitle VII claims must be filed under oath (and subject to potential perjury charges if factually untrue) with the Equal Employment Opportunity Commission (EEOC) or the Civil Rights Division of the Texas Workforce Commission before a lawsuit can be filed. Title VII claims in Texas must be filed with the EEOC within 300 days of the date of the discriminatory, harassing, or retaliatory conduct about which the employee is complaining. Texas has anti-discriminatory statutes in Chapter 21 of its Labor Code which are modeled after Title VII. These claims are filed with the TWC instead of the EEOC, but must be filed within 180 days after the complained about discrimination, harassment, or retaliation. Good employment lawyers who understand how state and federal laws work and the subtle differences between the two usually help clients file both state and federal claims (or a combined claim that qualifies under both state and federal law) within 180 days of the unlawful employment practice so that a lawsuit can later be filed in either state or federal court. Once a complaint is filed in writing, with either the EEOC or TWC, an investigation is conducted. There may be an attempt through an informal settlement process known as mediation to settle the claim early in the process. If the case is not settled, the investigating body (EEOC or TWC) will issue a notice of right to sue letter or a finding that there is either cause or no cause to believe discrimination has occurred. In only 5-6% of all complaints, does the EEOC find cause to believe discrimination has occurred. If there is a cause finding, the EEOC will then try to get the parties to conciliate (settle) the matter. If no settlement occurs at this time, a notice of right to sue letter is issued. Whenever the EEOC issues a right to sue letter, the worker has 90 days to file a lawsuit. When the TWC issues a right to sue letter, the worker has only 60 days to file a lawsuit.
Forms of DiscriminationIn addition to the types of discrimination mentioned in the Title VII section above, other specific types of discrimination include:
- Sexual harassment is a form of discrimination based on sex. Although sexual harassment more often occurs to women, it can happen to men as well. The two most grievous forms of sexual harassment are:
- Quid pro quo. “Quid pro quo” means “this for that.” In this situation, the employer demands sexual favors in return for promotions or even just keeping a current job.
- Hostile work environment. A hostile work environment exists when behavior occurs that the victim finds sexually offensive and would be found similarly offensive by a reasonable person. Such behavior includes unwanted or unnecessary touching, verbal comments, or any other behavior that is found to be offensive.
- The person who is sexually harassing may be the employee’s co-worker, a non-employee, a supervisor or employer’s agent. Victims of sexual harassment are not limited to the direct target of the harassment but may also include anyone affected by the offensive behavior.
- Workplace racial harassment is inexcusable. Likewise, there is no reason to put up with racial harassment. Racial harassment includes any verbal or physical conduct towards an individual because of his or her race, color or national origin. This behavior must be so persistent that it creates a hostile work environment.
- Age discrimination is prohibited by the Age Discrimination in Employment Act of 1967 (ADEA) which was passed to resolve the problem of older workers being subject to arbitrary age limits regardless of potential for job performance. This act prohibits arbitrary age discrimination in employment and bases employment on ability rather than age. Consequently, based on age it is illegal to—
- Refuse to hire
- Deprive of employment opportunities
- Reduce wage rates
- Discriminate with regard to compensation, terms, conditions or privileges of employment
- Refuse labor union membership
- Disabilities discrimination is prohibited by the Americans with Disabilities Act (ADA) of 1990, which was amended in 2008 and again in 2009. The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. With respect to employment, the act prevents employers from discriminating in ways such as:
- Limiting or categorizing job candidates or employees in an adverse way
- Denying employment opportunities to qualified individuals
- Denying equal benefits
- Failing to make reasonable accommodations for a disabled worker
- Failing to accommodate disabled workers with training
- Denying promotion to qualified individuals based on disability
- Military discrimination is prohibited by the Uniformed Services Employment and Reemployment Rights Act (USERRA) (http://www.military.com/benefits/legal-matters/userra/overview) and prevents employers from discriminating against employees who belong to the military service. Members and veterans of military services receive employment protection for civilian jobs under USERRA when called to military service. Provided that they adhere to the law’s requirements, their jobs are held and they accrue seniority and other benefits whether engaged in wartime or peacetime service.
- Discrimination based on family illness or caring for a new child is prohibited under the Family and Medical Leave Act (FMLA) of 1993. This act requires larger employers (companies with 50 or more employees) to hold employees’ positions or reinstate them to equivalent positions while they take an unpaid leave for a maximum of 12 weeks per year to recover from a serious illness, care for a sick family member, give childbirth or care for a child through adoption or foster care.
- Wage discrimination based on gender is prohibited by the Equal Pay Act of 1963 which requires people of the opposite sex doing the same or similar jobs to be paid equally.
- Genetic discrimination is prohibited by the Genetic Information Nondiscrimination ACT (GINA), which prevents employers from discriminating against employees based on their genetic information, such as DNA that indicates predisposal to diabetes, cancer, heart disease, or some other illness or debilitating condition.
Get legal help with discriminationOur personal injury lawyers at Bush Lewis have extensive experience in all aspects of discrimination whether filing EEOC or TWC claims, or taking legal action on your behalf through litigation or resolving issues through negotiated settlement. We provide legal assistance tailored to meet your individual needs, and our thorough knowledge of discrimination laws and how they apply to workplace situations allows us to offer savvy legal guidance. Call Ken Lewis today at 409-835-3521, or contact us through our website. Serving residents throughout Texas including Orange, Beaumont, Jasper, Lumberton, Nederland, Groves, Silsbee, Winnie, Anahuac, Vidor, and Port Arthur
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