In this episode of Employment Law Problems, I discuss some of the basic elements that all employers should consider when responding to an EEOC charge. Many employers will never face a discrimination charge, but for those that do it can be one of the most difficult allegations to defend against if the employer does not take proper precautions. Fortunately, there are a number precautions that employers can take to reduce their risk. Many employers can benefit from understanding the laws around discrimination, training your managers, and documenting various employee problems, which I discuss in this episode.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
It is something that occurs once every two years. No, this is not a post about elections or the World Test Championship (it is not what it sounds like and is actually pretty awesome). I’m talking about the Texas Legislative Session beginning and the release of their proposed bills. Texas is unique in that the legislature only meets once every two years unless the governor calls a special session.
In this post, we will explore some of the bills that have been introduced so far this legislative session that relate to labor and employment. I plan to update this post once the deadline to introduce new bills ends and probably will do a follow-up post if anything noteworthy passes. I am not going to include any bills related to health insurance or Medicaid, marijuana, or those that are specific to state employees, even though these affect labor and employment law. You can view all of the bills that have been proposed so far here.
This post will focus on those bills that concern the traditional areas that concern labor and employment such as sexual harassment, wage and hour laws, the minimum wage, and discrimination. Due to the number of bills, I am only including a brief summary in addition to that already provided by the legislature with what I consider the highlights of the respective bill.
Relating to the statute of limitations applicable to a sexual harassment complaint filed with the Texas Workforce Commission.
The bill essentially allows a person to file a complaint for sexual harassment with the Texas Workforce Commission within 300 days of the alleged sexual harassment rather than within 180 days. This will allow parties to file more claims.
Relating to the prohibition against sexual harassment in the workplace.
The above house and senate bills essentially define what constitutes sexual harassment within Chapter 21 of the labor code and add liability for a party if they knew or should have known that sexual harassment was occurring and failed to take immediate and appropriate action when they had that knowledge. It tracks the language currently in Section 21.1065, which deals with sexual harassment for unpaid interns, however, the new language applies to all employees.
Relating to discrimination on the basis of hair texture or protective hairstyle associated with race.
At the time of this article, six states have enacted similar laws regarding hairstyle discrimination and 22 states have considered it. These laws ban discrimination based on hairstyles that are typically associated with a certain race (generally these laws list braids, locks, and twists as forms of hairstyles that should be protected). It is possible that bills that have already passed in other states could be expanded or clarified to include other hairstyles that may be traditionally associated with races or ethnic groups.
Relating to requiring certain employers to provide paid sick leave to employees; providing administrative and civil penalties.
The above bill would require employers to provide sick leave for various uses. Employees would be able to earn one hour of paid sick leave for each 30 hours worked.
Relating to the repeal of certain provisions governing state and local enforcement of immigration laws and other provisions related to immigration law.
Relating to state occupational licensing of certain military veterans and military spouses.
These bills deal with the occupational licensing requirements for educators and make it easier for military veterans and spouses to establish residency to obtain a license. The military itself has sought to help military veterans and spouses, as it can be difficult to get an occupational license quickly. You can read the Department of the Treasury and Department of Defense report on the issue here. The issue affects a lot of military spouses that follow their partner throughout their military career, which oftentimes requires frequent relocation..
Sexual Orientation and Gender Identity Discrimination
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
Relating to the prohibition of certain discrimination based on sexual orientation or gender identity or expression; providing an administrative penalty.
These bills would make discriminating against someone on the basis of their gender identity or sexual orientation unlawful and establishes a penalty and a cause of action against employers that do so. As a reminder, Title VII now protects individuals from discrimination on the basis of their sexual orientation and gender identity provided that Title VII applies to the workplace.
Relating to a prohibition of employment discrimination on the basis of reproductive decisions and certain employment agreements limiting reproductive decisions.
This bill prevents the employers from discriminating against employees on the basis of marital status during pregnancy, the use of IVF or other assisted reproduction, the use of contraception or a specific form of contraception, or the “obtainment or use of any other health care drug, device, or service relating to reproductive health.”
Relating to workplace violence prevention in certain health care facilities.
The above bill is meant to help curtail workplace violence at health care facilities by requiring these facilities to create a workplace violence prevention committee or authorize an existing facility committee to develop and implement a workplace violence prevention plan.
Relating to a prohibition on certain discrimination in employment compensation.
This bill bans companies from asking about wage history to prospective hires and makes it illegal to pay an employee less than an employee of the opposite sex for the same or substantially similar work unless it is based on a seniority system, merit system (meaning a system that measures earnings by production) or a bona fide factor other than sex.
Relating to the prohibition of certain employment discrimination regarding an employee who is a volunteer emergency responder.
The bill provides certain protections to volunteer emergency responders that are absent from or late to work because they were responding to an emergency in their capacity as a volunteer emergency responder.
Relating to employment leave for certain family or medical obligations.
The above bill requires employers to provide at least 30 days of leave to employees that have worked for at least one year for a variety of potential uses. These may include the birth of their child, their own illness, and other permitted reasons that are similar under the FMLA.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to the period during which an employee may file a claim for unpaid wages with the Texas Workforce Commission.
The bill basically grants employees one year, rather than 180 days, to file a wage claim. Claims would need to be filed by the first anniversary of when the wages claimed were due.
Relating to certain unlawful employment practices regarding compensation.
This bill essentially prohibits employers from using an employee’s wage history to determine whether to hire an applicant, the wages to pay an employee, whether to employ the person, and whether to promote the employee.
Relating to the timely processing of certain requests relating to the employment of a person released on parole or to mandatory supervision.
Both of these bills are meant to help parolees and released individuals get jobs. These probably stand a good chance of passing. The plight of inmates and parolees who have difficulty getting jobs after they are released got a lot of publicity this year after the inmate firefighters in California served so well in fighting the fires there. Context: A bill passed this year that allowed these prisoners to get firefighting jobs after release.
Relating to the state contribution to the Teacher Retirement System of Texas.
This bill requires the government to contribute a minimum of seven percent to a maximum of ten percent rather than a minimum six percent to the retirement system for teachers.
Relating to a cost-of-living adjustment applicable to certain benefits paid by the Teacher Retirement System of Texas.
The bill states that the government will make a one-time cost of living adjustment payment to someone receiving a monthly death or retirement benefit within the Teacher Retirement System.
Relating to the payment of certain employer contributions for employed retirees of the Teacher Retirement System of Texas.
This bill prevents school districts from passing on the costs of certain payments to retirees through a fee or other method.
And Lastly, The Most “Texas” Bill this Legislative Session
In what is undoubtedly making me question everything that I know as a Texas transplant, Texas has yet to make the Bowie knife the official state knife of Texas.
Most of these bills will not pass. The 87th legislative session is likely to focus on the issues related to COVID. Right now there are hundreds of bills between the House and the Senate (not counting resolutions). Some of these bills may be more likely to pass in future legislative sessions (e.g. those related to marijuana, gender identity, and sexual orientation discrimination), but time will tell what happens.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Discrimination in the workplace is not something that ended in the 1960’s with the passing of the civil rights act and desegregation of public schools. It continues today.
A recent Glassdoor survey found that 61 percent of U.S. employees “have witnessed or experienced discrimination based on age, race, gender or LGBTQ identity in the workplace.”
Forty-two percent of working adults in the US have either been a victim of racism or have witnessed racism at work.
Around 45 percent of workers in the US have either experienced or witnessed ageism at work, which makes it the most common form of discrimination in the workplace
Most people will eventually witness some form of discrimination while they are at work. Sometimes people will shrug off the discrimination or think that it is no big deal, but should they have to? Discrimination in the workplace is something that no one should have to tolerate and one that no business should want to occur.
Basically, every company needs to be aware of the issues surrounding discrimination in the workplace so they can act. You do not want workers (or the business itself) to discriminate against people. The average cost of an employment lawsuit can cost tens of thousands of dollars. One survey by Hiscox found that the average cost of defense and settlement was $160,000. Companies need to deal with employees, managers, and even clients that discriminate against workers. Businesses that fail to do so will subject themselves to lawsuits, have less productive employees, poor morale, and a higher turnover.
What is Discrimination?
Discrimination comes in many forms. Title VII protects employees from discrimination based on a person’s sex, race, color, national origin and religion. The ADEA protects employees from discrimination based on age (at least if the person is over 40) The Americans with Disabilities Act Amendments Act (ADAAA) protects individuals with disabilities from discrimination. You can read more about accommodating individuals with disabilities here. The Equal Pay Act prohibits paying employees doing the same work differently unless certain conditions are met.
Stereotypes, jokes about someone’s racial characteristics, concerns that someone cannot do something or would not want a promotion because they are pregnant, and the idea that disabled people are somehow less able to complete a task have no place in the workplace.
For example, most people think that young people are best apt to start a business or run a company based on the companies that we frequently see in the news that were started by young founders (Facebook, Apple, and a number of other tech companies). These are not typical companies. One study found that “a 50-year-old founder is 1.8 times more likely to achieve upper-tail growth than a 30-year-old founder.” Many older founders benefit from their experience in founding a company, experience that younger people have not been able to achieve yet. Everyone’s unique experience brings some benefit to the workplace.
Creating a Culture that Does not Allow Discrimination
The most important thing that companies and managers can do to correct discrimination is to take an active role in preventing it in the workplace.
First, companies need to educate their managers, supervisors, and other leaders about discrimination issues and gather information about it. Supervisors need to understand the laws on discrimination and the areas where discrimination is most likely to occur so that they can take an active role in preventing it. Moreover, companies should gather data about terminations, promotions, and pay to ensure that they are not inadvertently discriminating against any members of any protected category.
Managers need to understand that discrimination in the workplace is not something that will ever be tolerated and they need to act quickly when they witness it, or someone reports it to them. This is the way that you fight discrimination or any bad behavior in the workplace. You have to act! You have to call things out! You cannot let things slide! Managers need to be acutely aware that a joke or a comment is a lot more than that to the person on the receiving end.
Culture is not something that you learn at a one-hour seminar where the speaker uses a ton of buzzwords and everyone leaves excited. It takes an incredible amount of hard work and leadership at the top to create an organization with the right culture. It is something that is built day by day and person by person in the organization. A bad leader can create a culture of discrimination very easily.
In the context of preventing discrimination, there are a few different types of bad leaders that can destroy the culture pretty quickly and cause discrimination issues. Any leader that actively participates in making inappropriate jokes in the office will cause problems. A boss that ignores complaints and let’s things go will create a welcome environment for discrimination.
To be effective, a manager or supervisor needs to set the tone in the workplace. In a lot of ways, it is like parenting. If you tolerate behavior that is inappropriate, then people will think it is permissible and will continue to do it. Managers need to be willing to step in and stop any instances of discrimination in the workplace.
To do this, managers also need to set the tone about appropriate behavior and make employees aware that they can report issues to the managers. Managers can do this by having short meetings at the beginning or end of a shift reviewing procedures and practices at the company. For example, managers refresh employees’ minds about the appropriate ways to report a complaint, to request a disability accommodation, and perform other actions that will reduce the possibility of discrimination.
Acting to Reduce Hiring Biases
The only way to reduce bias in hiring and terminations is to examine your data.
In general, you need to know what the makeup of your workforce is compared to the workforce available in your area if possible and your applicant pool. If you are not hiring enough of a certain group or never hire any qualified applicants of a certain group, then it can start to look like you are either purposefully not hiring individuals with a certain protected characteristic or there is a disparate impact on certain individuals in the hiring process.
If you do have a disparate impact in hiring, then you need to consider where you are hiring individuals. For example, if you are a tech company and only hire on college campuses, then there is a good chance that you are discriminating against older individuals through your hiring methods. Older people tend not to be college students.
Another common issue that some worksites have is paying women different than men in the same job and that they are doing similar work. The Equal Pay Act states that you cannot pay men and women differently for doing the same job. As noted in the Act, you can have different pay for people in the same job doing the same work when the salary is determined by:
(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex
One final point, a person’s ability to negotiate a better salary is not a factor other than sex. If you pay people differently because they negotiated differently, then you may be subject to a discrimination claim.
You can read more about correcting disparities among protected groups in my article on preparing an affirmative action plan. It only applies to federal contractors, but it has considerations for businesses to help address the issue.
How to Reduce Bias in Termination and Discipline
To eliminate discrimination in the discipline and termination process you can review my article about the questions that you should ask when considering whether to discipline someone, what level of discipline to apply, and whether you should terminate someone.
For purposes of determining whether the action was discriminatory the most important questions are:
Was progressive discipline applied?
Is there any written documentation?
Does this violation warrant termination or the level of discipline applied?
Have all other employees who violated the rule or policy been similarly disciplined or terminated?
Are there extenuating circumstances that would mitigate the level of discipline or termination
Essentially, the questions are focused on whether you have applied your policies consistently and how you have treated individuals in the past. All companies should have a progressive discipline policy where they are consistent in treating violations of company policy the same. Obviously, the most important question for purposes of determining whether there has been discrimination is whether other employees were treated the same in the past. You need to treat everyone the same when disciplining and terminating employees.
It is that simple to say, but it is more difficult in practice. You need to review circumstances and past practices carefully to ensure that you are treating people fairly. Sometimes, there will be extenuating circumstances and you may treat people differently. You need to document why you treated them differently or made an exception to your rule when you discipline employees. A haphazard approach is likely to lead to liability and lawsuits.
How to Respond to an Allegation
As I have said before, all companies need to have a complaint procedure and train your supervisor on those procedures. I also wrote about conducting a workplace investigation before and much of that information is relevant to an allegation of discrimination. The most important part of that article in this context is to keep good records on past behavior; respond in a timely manner to a complaint; gather the information quickly; and take a systematic approach to wrapping up the investigation by examining the evidence, your past practices, and assessing the witnesses’ credibility carefully.
I do have a couple of additional items to add to those articles that are specific to these kind of discrimination claims.
You need to understand that these are sensitive issues for the people that are discussing them. A claim that someone was discriminated against on the basis of their sex or was on the receiving end of jokes about their sex should have investigators or people that they can report the claim to that are both women and men. It can be very uncomfortable to discuss these issues. A woman may not feel as comfortable about reporting discrimination to a man and vice versa. There needs to be other channels for them to report to that take this kind of factor into consideration.
As I said above, a claim that there has been disparate treatment for individuals with a certain protected characteristic may require the company to run a statistical analysis to determine whether the actions of the company in hiring individuals discriminated against a certain group. The best way to fight these lawsuits is to examine your data regularly and adjust your hiring practices if it causes a disparate impact on a protected group.
Conclusion
You can reduce discrimination in the workplace. It takes an effort of all team members, supervisors, and upper management to do so. Managers are in a unique place to reduce discrimination because they witness employee behavior. A good manager knows how to respond to employee problems and quickly stop any inappropriate behavior which helps build a positive and respectful culture over the long term.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
