On January 25, 2021, the EEOC filed a lawsuit in federal court alleging that Awon Phie LLC d/b/a Holiday Inn Express & Suites violated federal law when it fired an employee because she was pregnant.  It is alleged in the lawsuit that a manager at the hotel told the employee that she was a “liability” because of her pregnancy and fired her.  If proven, the actions by the hotel violate Title VII of the Civil Rights Act on 1964, which prohibits pregnancy discrimination in the workplace.  As one of the EEOC attorneys has been quoted in this case, “[a] pregnant employee who is ready, willing, and able to work has the right to continue to earn a living.”

Pregnant Employees have Legal Rights

With the passage of the Pregnancy Discrimination Act of 1978, Title VII of the Civil Rights Act of 1964 was amended to protect pregnant employees from discrimination in the workplace.  The Pregnancy Discrimination Act protects female employees (or applicants) from discrimination or harassment in the workplace on the basis of pregnancy, childbirth, or related medical conditions.  If a pregnant employee is willing and able to work, an employer cannot fire that employee or force her to stop working.  Furthermore, pregnant employees are protected from harassment by their employer, which could include unwanted comments, jokes, or other behavior that creates a hostile or offensive work environment.

What is the EEOC’s role?

The EEOC is a federal agency that is responsible for investigating allegations of discrimination in employment.  Individuals in Texas have 300 days from the date of any discriminatory act to file what is called a Charge of Discrimination with the EEOC.  After a Charge of Discrimination has been filed, the EEOC conducts an investigation (lasting 180 days or longer) into the allegations of discrimination.  At the conclusion of its investigation, the EEOC has the authority to file a lawsuit in federal court on behalf of the employee (and any similarly situated employees) to enforce the law and prevent any further discrimination.  Even if the EEOC does not decide to file a lawsuit, the employee receives a Right to Sue letter from the EEOC that affords the individual the right to file suit in federal court on her behalf.

Do I need an employment lawyer?

While it is not required to have legal representation through the Charge of Discrimination process before the EEOC, it is highly recommended that you seek out an employment lawyer in your area prior to filing (time permitting).  An employment lawyer can help focus the allegations on what is most relevant and help navigate through the intricacies of both the law and the EEOC administrative process.

If you have been discriminated against, harassed, or fired while pregnant, or if you have any questions about your legal rights as a pregnant employee under both Texas and federal law, please do not hesitate to contact an employment discrimination lawyer for a free initial consultation.

With all the recent stories in the news, it should come as no surprise that sexual harassment and sex discrimination is still prevalent in the workplace.  Dozens of allegations of sexual harassment and sexual assault have now been brought forward against Harvey Weinstein of The Weinstein Company.  Roy Price, the Studio Chief of Amazon Studios, resigned from his position following allegations of sexual harassment by an executive producer.  Uber was just sued by three female employees for discriminatory pay practices at the company following allegations earlier this year of a work environment that fostered sexual harassment.  Uber’s CEO ultimately stepped down in the wake of a sexual harassment investigation.  

These recent news stories show sexual harassment from very large companies coming from the very top of their ranks.  With the claims made against The Weinstein Company, it has been publicized that the company and its board were made aware, as early as 2015, of several confidential settlements that had been reached with women who brought claims against Mr. Weinstein.  Not only does the company face countless moral and ethical questions about how Mr. Weinstein’s behavior was swept under the rug, but there is also a question about how much of an impact this will have on the company moving forward with numerous legal claims almost certainly in their future.  While these stories have been plastered over the news in recent months, these situations are far too common in today’s workplace.        

When an employee in Texas complains about sexual harassment or sex discrimination in the workplace, he or she files what is called a charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission (EEOC).  While the numbers have not increased dramatically in recent years, the EEOC’s statistics show that nearly 27,000 charges were filed alleging sex discrimination during 2016, accounting for nearly 30% of all charges of discrimination.    So, is sexual harassment and sex discrimination coming to an end anytime soon?  The short answer: No. 

What to do if you are a victim of sexual harassment

Sexual harassment in the workplace can come in many forms.  An employee can be sexually harassed by his/her co-worker, client, vendor, boss, VP, President or CEO.  When you are the victim of this type of behavior, there are two steps you should always take: first, document the harassment as best you can and second, make a complaint.  The only way to put a stop to this illegal behavior is to voice your complaint to someone at the company (e.g. HR, a supervisor, etc.), and let it be known that you are not going to tolerate it moving forward.  This can be done over the phone or in person, but it is better to document it in writing via an email or letter. 

If you want to know more about what your legal options are prior to making a complaint, you should always feel comfortable reaching out to an employment lawyer in your area.  Additionally, if you make a complaint to your employer and the sexual harassment does not stop, you should immediately reach out to an employment lawyer to discuss your next steps.

The former head football coach for the University of Southern California, Steve Sarkisian, has filed a state lawsuit in California alleging, among other claims, that he was discriminated against based on his alcoholism.  Not only does he claim that he was terminated because of his alcoholism, but he has also alleged that USC failed to provide him with a reasonable accommodation.  The lawsuit has only recently been filed, but USC has already released a statement characterizing much of it as “patently untrue.”

Is Alcoholism Considered a Disability in Texas?

While this lawsuit was filed under a state law in California, it is an interesting example of what may be considered to be a disability under state law in Texas or federal law, the Americans with Disabilities Act (ADA).  While the ADA does not list every possible disability, the EEOC has determined that alcoholism is a recognized disability under the ADA.  However, an evaluation must be done on a case by case basis to determine whether or not an employee does, in fact, suffer from alcoholism and whether or not the employer was aware of the disability and discriminated against the employee.  Additionally, the ADA protects employees from discrimination when the employer regards the employee as disability.

Alcoholism and the ADA

Under the ADA, “disability” is defined as (a)

• “a physical or mental impairment that substantially limits one or more major life activities”
• “a record of impairment; or 
• “being regarded as having such an impairment.”  42 U.S.C. § 121012. 

Major life activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 

Once an employee has shown that he/she has a disability under the ADA, the employee must next show that he/she is qualified to perform the essential functions of the position.  This can be a much more difficult burden for someone, like Coach Sarkisian, trying to pursue a claim of discrimination based on alcoholism as a disability.  Essential functions of a job may include regular attendance and being on time to work.  For someone suffering from alcoholism, these may be difficult requirements to meet. 

Finally, an employee pursuing a claim of discrimination based on alcoholism must be able to show that the employer could have provided a reasonable accommodation.  While there is not an exhaustive list of what accommodations are reasonable, one of the most common accommodations for someone suffering from alcoholism is allowing the employee to take paid or unpaid leave for medical treatment or counseling.  Additionally, under the Family and Medical Leave Act (FMLA), an employee suffering from alcoholism may be eligible to take up to 12 weeks of unpaid job protected leave in order to deal with his/her alcoholism.  Figuring out if an accommodation is reasonable and if an employer is even obligated to provide an employee with an accommodation is a very fact specific question and must be done on a case by case basis.    

Protect Your Job

Alcoholism can be a very debilitating disease that affects a person’s family, friends, job, and life in general.  In addition to getting the help one needs to treat the alcoholism, it is important to take the necessary steps to best protect one’s job.  If you believe that you have been discriminated against in the workplace because of your alcoholism, or if your employer is refusing to provide you with what you believe to be a reasonable accommodation, it is imperative that you understand your legal rights.  An employment lawyer in your area can advise you of those rights.

The City of Austin is “banning the box” with its new employment Fair Chance Hiring Ordinance that was approved by an 8-2 vote on March 24, 2016.  The new Ordinance will prohibit companies with 15 or more employees from questioning a job applicant about his/her criminal history until after a conditional job offer has been made.  The purpose of the Ordinance is to give all individuals with criminal histories an equal opportunity in obtaining employment.  

What is the Current Law in Texas?

Currently, Texas law does not prohibit discrimination towards an employee or job applicant because of that individual’s criminal background.  Therefore, an employee in Texas has no legal recourse under state law if he/she is denied employment based on something in his/her criminal record. 

While there is no state or federal law in Texas explicitly prohibiting discrimination based on an applicant or employee’s criminal history, the Equal Employment Opportunity Commission has issued guidance regarding the use of arrest and conviction records in employment decisions based on the discriminatory impact that criminal background check policies often have.  Because minorities are imprisoned at a disproportionate rate, minorities tend to suffer more based on background check policies.  However, this EEOC guidance does not prohibit the use of criminal background checks in employment decisions. 

What Does the Ordinance Do?

• The City of Austin Fair Chance Hiring Ordinance will only apply to those businesses within the City of Austin that have 15 or more employees. 
• The Ordinance only applies during the application process. 
• There is no prohibition against an employer firing an employee based on the discovery of some criminal history. 
• The law also does not prohibit an employer from revoking a job offer based on information obtained after a conditional offer has been made.     

The Ordinance is not a state or federal law, so it does not give a job applicant the legal right to file a lawsuit if a company is in violation.  An individual who believes that a company is in violation of the Ordinance will have the ability to file a complaint with the City.  Ultimately, a company found to be in violation could face a $500 penalty.   

Employee Rights

While the City of Austin Ordinance will potentially have an impact on the questions that applicants in Austin, Texas see when applying for jobs, it will do little to expand on the legal protections that employees in this State have from discriminatory treatment.  If you believe that you have been discriminated against based on a company’s use of criminal history information, it is important that you speak with an employment lawyer to understand your rights.