The Equal Employment Opportunity Commission (EEOC) was created by Congress in 1964, after the passage of the Civil Rights Act of 1964.  Title VII of the Civil Rights Act of 1964 was enacted to prohibit discrimination in employment based on color, national origin, race, religion, and sex.  The initial role of the EEOC was to investigate complaints of employment discrimination and to attempt to conciliate (resolve) complaints in which the EEOC found reasonable cause to believe that discrimination had, in fact, occurred.  If the EEOC was unsuccessful in resolving the complaint, then the individual had the right to bring a private lawsuit against his/her employer.

Almost immediately after its formation, the EEOC experienced a backlog of complaints with thousands more filed in the first year than initially expected.  While the number of charges of discrimination amounted to fewer than 10,000 in its first year, the current total fluctuates between about 75,000 and 100,000 each year.  With such high numbers of complaints being filed, the EEOC still experiences backlogs.  These backlogs continue to cause delays in the investigation process, and it will oftentimes take a year or more before the EEOC issues its determination and right to sue.

The early years of the EEOC were spent interpreting and defining the anti-discrimination laws and providing employees and employers across the country with guidelines.  Throughout the years, the EEOC has played an integral role in

• investigation allegations of employment discrimination
• fighting on behalf of employees to ensure that they receive the fullest protections under the various federal laws listed below
• In 1972, the EEOC was granted authority by Congress to file lawsuits against employers to enforce the anti-discrimination laws.

This power finally gave the EEOC the influence that it so desperately needed.

In 1967 came the passage of the Age Discrimination in Employment Act (ADEA).  The ADEA provided added employment protections for individuals over the age of 40, which Congress had specifically left out of Title VII of the Civil Rights Act of 1964.  Initially, the ADEA was enforced by the U.S. Department of Labor, but it was later moved under the purview of the EEOC in 1978, along with the Equal Pay Act of 1963.

Today, the EEOC enforces the following federal statutes:

Individuals who believe that they have experienced discrimination in employment are encouraged to pursue a charge of discrimination with the EEOC.  It is imperative that you file with the EEOC before you will have the legal right to file a lawsuit.  While you are not required to have an attorney represent you in the process, it can be invaluable having an experienced employment lawyer in your corner.

Texas is an at-will employment state, and there is currently no specific State or federal law which prohibits employment discrimination based on domestic violence.  There are domestic and sexual violence employment rights laws in 16 states, and these laws, like other anti-discrimination laws, prohibit certain employers from discriminating or retaliating against employees who have been victims of domestic violence or sexual assault.  In addition to these state laws that prohibit discrimination, there are a number of other states that have enacted more limited protections for victims of domestic violence.  32 states have passed laws that protect victims of crimes, including domestic violence and sexual assault, from being fired or otherwise disciplined for taking time off from work to participate in a related criminal proceeding.  While these laws are still relatively limited in their scope, Texas has neither type of law in place. 

In 2013, a bill was introduced in the Texas House of Representatives that would have allowed crime victims and parents/guardians of crime victims the right to take time off from work to attend court proceedings related to the crime.  However, like many other proposed bills before it, this bill died in committee. 

On the federal level, the Security and Financial Empowerment (SAFE) Act has been repeatedly introduced by Congresswoman Lucille Royball-Allard (D-Cal), but has failed to pass more than a dozen times.  The SAFE Act would have provided certain protections for survivors of domestic violence and sexual assault such as:

• up to 30 days off from work during any 12-month period to receive medical attention, seek legal assistance, and get help with safety planning;
• protection from termination because they were harassed by their abuser or participated in the criminal or civil justice process, sought modifications at work to increase workplace safety in response to domestic or sexual violence, or were subjected to exploitation through revenge pornography; and
• employers would be required to make reasonable safety precautions or job-related modifications if requested.

So what Protections are there in Texas?

Under Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964, employees are protected from disparate treatment based on sex.  While these laws do not explicitly prohibit discrimination based on domestic violence or sexual assault, they may still provide for legal recourse in certain scenarios.  For example, there may be a legal claim if the employers actions are related to the employee’s gender in connection with the domestic violence (e.g.):

• a male employee is given leave, but a female employee is not or 
• a male employee is fired after informing his employer that he was a victim of domestic violence because the employer believes men should be able to protect themselves 

Victims of domestic violence and sexual assault in Texas may also have certain legal protections under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).  A victim of domestic violence or sexual assault may have real or perceived physical or mental impairments that are protected under the ADA.  Employers would therefore be required to provide a reasonable accommodation based on this disability, and cannot terminate the employee because of the disability or perceived disability.  Likewise, an employee may be eligible for up to 12 weeks of job protected leave under the FMLA for his/her own health condition or to care for a spouse, child, or parent who suffers from a serious health condition that is related to an incident of domestic violence or sexual assault.   

Clearly, there is a lot more that the Texas Legislature and Congress could be doing to protect victims of domestic violence and sexual assault from employment discrimination.  The limited protections that are currently in place do not do enough to provide these individuals with the protection they need.  However, if you believe that you have been subjected to employment discrimination because you are a victim of domestic violence or sexual assault, you should contact a knowledgeable employment attorney in your area to discuss your legal rights.  Additionally, you can contact the office of your Representative or Senator to encourage them to pass laws that provide these much needed protections.   

Employees in Texas are protected from discrimination in employment based on their age.  However, there are certain limitations to these protections.  One of these limitations that may come as a big surprise to many is that the anti-discrimination laws related to age only apply to employees over the age of 40.  Under the law, there is no legal claim for age discrimination if an employee believes he is being harassed or treated unfairly because he is too young.  Conversely, employers do have the right to give preference to older employees/applicants based on age.  Under State law, age discrimination in employment is prohibited under Chapter 21 of the Texas Labor Code.  Under federal law, it is the Age Discrimination in Employment Act (ADEA) that prohibits discrimination against an employee because of his or her age.  While the Texas Labor Code applies to employers with 15 or more employees, the ADEA only applies to employers with 20 or more employees.

Can an employer ask me about my age?

While there is no explicit prohibition under State or federal law against an employer asking an applicant for her age or date of birth, these questions can potentially evidence a discriminatory intent.  If an employer needs an employee’s age or date of birth for a lawful purpose, the employer can always ask the individual after she is hired for the job.  To show age discrimination based on application questions, an applicant is generally going to need to show more than just:

• The application asked for the individual’s age
• The applicant did not get hired for the job

For example, there might be a much stronger case if the applicant can show that the employer regularly passed up on applicants that are over the age of 40 and hired younger employees in that particular position.

What constitutes age discrimination in employment?

There is no giant list that outlines each and every situation that constitutes age discrimination.  Generally speaking, the law prohibits an employer from discriminating against an employee with respect to hiring, firing, pay, promotions, layoffs, benefits, or any other term or condition of employment.  One of the most common scenarios involves negative comments or jokes being made about an employee’s age (e.g. “old man” or “grandpa”).  In evaluating a potential age discrimination claim, you want to look at:

• The frequency of the discriminatory comments
• If the comments preceded and/or relate to an employment action being taken against that employee

If the comments are being made on a daily basis, then the situation may rise to the level of creating what is referred to as a hostile work environment.

If you believe that you may be terminated or laid off because of your age, it is important to reach out to an employment attorney and discuss your legal rights.  There may be certain steps that you can take to prevent your employer from moving forward with the termination.  If your employer has already offered you a severance agreement that includes a waiver of your rights under the ADEA, they are required to give you at least 21 days to consider the agreement (45 days if it is part of a layoff).  Additionally, if you have a potential age discrimination claim, you may have an opportunity to negotiate the severance that you have been offered; but time is of the essence.

While it is obviously not the optimal place to find oneself in, there are situations when an employee is forced into the position of filing a discrimination complaint against a current employer with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC).  It is an employee’s legal right to file a complaint of discrimination if he believes that his employer is discriminating or retaliating against him.  While your employer cannot legally fire you for having filed the complaint, it can definitely create a strained relationship and consternation between the two parties.  So, what is an employee supposed to do after filing a complaint of discrimination against his employer?

Do not do anything to get yourself fired!

The Texas Labor Code and Title VII of the Civil Rights Act of 1964 (federal anti-discrimination law) both prohibit an employer from terminating or otherwise retaliating against an employee for filing a complaint of discrimination with the TWC or EEOC.  However, this does not mean that you cannot be fired after you have filed a complaint of discrimination.  An employer still has the right to fire an employee if the employee violates company policy or is not performing his or her job duties.  Therefore, it is always important to be extra vigilant about your job duties and performance following the filing of a discrimination complaint.  You never want to give your employer a reason to fire you. 

In addition to fulfilling all of your job duties and continuing to successfully perform your job, it is also important to understand any company policies to ensure that you do not violate one.  For example you want to be careful to meet any attendance guidelines, maintain appropriate relationships with co-workers, and always use appropriate language when communicating at work.  Reviewing your employee handbook or company policies can also provide you helpful information about what you should and should not do in the course of gathering evidence of the discriminatory or retaliatory treatment.  You may want to record a conversation that you have with HR or your supervisor.  While there is no state law in Texas that would prohibit you from recording a conversation that you are a party to, a company may have a policy that prohibits its employees from doing so.

Other Helpful Tips

You should probably assume that your employer is keeping a close eye on you if you have filed a complaint of discrimination against them.  Be extra vigilant about discussing your discrimination complaint with co-workers, and do not send emails to your attorney from your work computer or work email (unless that is your only option).  You should also do what you can to document anything that is said or takes place which you believe provides further evidence for your discrimination or retaliation claim. 

As a final resort, if you are uncomfortable at work or unsure of what you can or should do at work, you should reach out to your attorney or contact an employment attorney to discuss the matter as soon as you can.  While you do not have the right to bring your attorney to meetings at work, you can always attempt to contact him/her to know your legal rights. 

A huge number of current and former members of the military reside and work in the State of Texas.  As such, it is important for these individuals to understand their rights under both State and Federal law.  Texas has enacted a State law which provides for veterans to receive preference in employment with a state agency.  Federally, the Uniform Service Employment and Reemployment Rights Act (“USERRA”) protects past and present members of the uniformed services from discrimination in employment. 

Veteran’s Employment Preference Act

The Texas Veteran’s Employment Preference Act is found in Chapter 657 of the Texas Government Code.  Although relatively limited in terms of its impact on veterans’ ability to obtain employment with state agencies, it does theoretically provide certain employment rights for veterans in Texas and gives veterans an edge when applying for positions.  The reason that I emphasize the limitations of the law is that it is very specific in terms of when a veteran should be given this preference.  The only time that a veteran receives this preference is when he/she is compared to other applicants for the same position “who do not have a greater qualification.” 

Without a whole lot of guidance from the Legislature, what constitutes “greater qualification” is subject to a good deal of interpretation.  Does it just mean that the State agency must look at the objective criteria like education and work history?  Or does the agency also consider more subjective elements of the application process like the interview?  It would appear as though there would need to be two nearly identical candidates for the law to actually impact the hiring decision.  As written, the Texas Veteran’s Preference Act does not really have the impact that the Legislature likely intended when it was enacted. 

Discrimination under USERRA

Veterans, and current members of the armed forces, enjoy much greater protections under USERRA than under Texas State law.  USERRA

• prohibits discrimination and retaliation against past and present members of the military,
• ensures that you have the right to be reemployed if you are forced to leave your job to perform service
• allows members of the military the right to elect to continue their existing employer health plan for up to 24 months if they are forced to leave the job for service. 

Like the anti-discrimination laws that prohibit discrimination based on an individual’s gender, race, age, disability, national origin, or color, USERRA prohibits employers from discriminating against an individual based on that individual’s past or present military service or intent to serve in the military.  Not only are employers prohibited from using this information to deny someone employment opportunities, but it also cannot be used for purposes of re-employment, promotions, or any other benefit offered by the employer.

Employment Assistance for Veterans

In addition to the Veteran’s Employment Preference Act and USERRA, Veterans also have various tools available through both the VA and other state and federal organizations.  For example, the Texas Workforce Commission gives priority service for veterans searching for jobs through its Workforce Solutions offices.  Additionally, the Veterans’ Employment and Training Service (VETS), which is part of the United States Department of Labor, provides assistance to veterans entering or re-entering the workforce. 

If you are a current or former member of the military and you believe that your status as a veteran or current member of the military is being held against you in some way by your employer or a potential employer, it is important that you understand all of your legal rights.  An employment attorney in your area can discuss your potential claim and provide you with your legal options.    

More and more employees across Texas are being required to sign binding arbitration agreements with their employers. These arbitration agreements are oftentimes found in employment contracts, but can also be found in standalone agreements that an employer presents to an employee. Oftentimes, there is little to no negotiating of the terms of these agreements. The employer hands the document to the employee (or potential employee), and tells the employee that he or she must sign the document as a condition of employment. While it may seem unfair, there is little that prevents an employer from doing this.

What is arbitration?

Arbitration is an alternative process for resolving legal claims outside of the court system. The rules that will govern the arbitration process are most often laid out in the contractual agreement between the parties. In arbitration, an arbitrator is chosen by the parties to oversee the case and make procedural decisions very much like a judge would. Like a lawsuit, the parties will go through some form of discovery where documents are exchanged and the parties get to make evidentiary inquiries of one another. There will also be certain deadlines for the parties to conduct discovery and file any motions with the arbitrator. Ultimately, there is a hearing that takes place instead of a trial, and the arbitrator issues a ruling. These rulings are typically final, but they may be appealable depending on the rules.

How does the arbitration agreement affect me?

It is impossible to say how your specific arbitration agreement may affect you without reviewing it. However, most arbitration agreements will prevent an employee from pursuing any legal claims against his or her employer in court. Instead, the employee will be forced to pursue the claim through arbitration. While there are a lot of similarities between arbitration and a lawsuit, there are also very stark differences.

• Cost-costs of arbitration are typically much higher for the employee than in a lawsuit.
• Rules- of arbitration differ from those that apply in a state or federal lawsuit. While this does not necessarily mean that the rules are always stacked against the employee, the reality is that arbitration agreements can deter employees from pursuing claims against their employers.
• Off the Record– Arbitration proceedings are typically not part of the public record. This confidentiality element generally favors employers and prevents any influence from the court of public opinion.

An arbitration agreement does not waive your rights to pursue claims against your employer. For example, you still have the right to file a Charge of Discrimination with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC). However, once the TWC or EEOC has issued a right to sue, you are likely forced to pursue the case further in arbitration.

So, you’ve been handed an arbitration agreement and told to sign it or you’re out of a job. What do you do? While it is always advisable to thoroughly review whatever document you are signing, the reality is that if you do not sign the document, you are likely out of a job. You can always contact an employment attorney in your area to discuss the document before you sign it. And if you have already signed an arbitration agreement, remember that it is not the end of the world. You are not releasing your claims because of that agreement, but you are binding yourself to a completely different legal proceeding.