“Discrimination” has become a potent buzzword in our society.  Although the word is widely used, most of the “discrimination” that occurs is not discrimination that is prohibited by law.  The law of employment discrimination consists of a patchwork of different laws, each with its own set of prohibitions and remedies.  The main laws that prohibit employment discrimination are Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act, 42 U.S.C. §1981, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Equal Pay Act, and the Equal Protection Clause of the United States Constitution.

Race, color, ethnicity, and national origin discrimination

One step forward and two steps back…

People often think that race discrimination is yesterday’s problem. It is easy to see how people might feel this way. After all, we now have an African-American president, and people of color have made great strides in virtually every facet of life. Despite these positive developments, race discrimination, and discrimination based on national origin, continues to occur in our nation’s workplaces. In both subtle and glaring ways, race continues to play a role.

The good news is that both federal and Texas state law prohibit discrimination based on race and national origin. These laws prohibit various types of discrimination. 42 U.S.C. §1981, the Equal Protection Clause of the United States Constitution and Title VII of the Civil Rights Act of 1964 are all federal laws that protect you from discrimination based on race, national origin, color, and ethnicity. The Texas Commission on Human Rights Act (TCHRA) is a Texas state law that protects you from these types of discrimination.

The first kind of discrimination that is prohibited by law is the most straightforward. It involves treating someone unfavorably because she is of a certain race or because of personal characteristics associated with race. In a nutshell, the law forbids discrimination with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other “term or condition of employment.”

It is also illegal to harass someone on the basis of race or national origin. While many find it hard to believe that this kind of conduct still takes place in our nation’s workplaces, the reality is that nooses, racial slurs, and other types of racially bigoted behavior still happens. When this occurs you will definitely want to consult with an experienced labor and employment attorney to help you put an end to this kind of situation, and to preserve your ability to seek legal redress if your employer is unwilling to remedy the situation.

A third, but less common, type of discrimination involves an employment policy or practice that applies to everyone that has a disproportionately negative effect on workers of a particular race, ethnicity or national origin. Unlike the other kinds of discrimination, this kind of discrimination does not necessarily involve an intention to discriminate. The most well-known example of this kind of discrimination is a “no-beard” employment policy that applies to all workers regardless of race, but has a negative impact on the employment of African-American men, who have a predisposition to a skin condition that causes severe shaving bumps. Another example is a requirement that employees be at least a certain height, which disproportionately excludes persons of Asian descent.

Finally, many people don’t realize that it is illegal for an employer to discriminate against an employee because that employee associates with a person of a particular race or national origin. For example, it would be illegal to fire a white employee because the employee is married to an African-American.

Sex Discrimination

It’s hard to believe that discrimination based on sex, or gender, still happens. Women have made great strides in the workplace and have achieved career milestones that our mothers and grandmothers never thought possible. For many women, however, barriers remain. Today women still earn about twenty percent less than what men earn. We know that sex discrimination persists.

Thankfully we have laws that protect you from sex discrimination. Title VII of the Civil Rights Act of 1964 (Title VII), the Equal Protection Clause of the United States Constitution, and the Texas Commission on Human Rights Act (TCHRA) both protect employees from discrimination based on sex or gender.

These laws prohibit sex discrimination with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other “term or condition of employment.”

Title VII and the TCHRA also prohibit sexual harassment.

Additionally, these laws, along with the Equal Pay Act, make it illegal to pay female employees less than male employees.

Religious Discrimination

The freedom to practice whatever religion you want, and how you want, is one of the rights that we hold nearest and dearest to our heart. Unfortunately religious bigotry remains a big problem in our country, and for this reason there are laws that protect you from religious discrimination in the workplace. Discrimination based on religion is prohibited by Title VII of the Civil Rights Act of 1964 (Title VII), the First Amendment to the United States Constitution, and the Texas Commission on Human Rights Act (TCHRA). These laws operate to do two things. First, they protect employees from religious discrimination in the workplace. Second, they impose a requirement on employers to reasonably accommodate employees’ religious beliefs.

Generally, religious discrimination involves treating an employee or job applicant unfavorably because of her religious beliefs. The law protects people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, and others who have sincerely held religious, ethical, or moral beliefs. Title VII and the TCHRA also prohibit treating someone differently because that person is married to an individual of a particular religion. Title VII and the TCHRA also prohibit harassment based on one’s religion.

Importantly, the law also requires an employer to “reasonably accommodate” an employee’s “bona fide” religious beliefs or practices, unless doing so would cause significant difficulty or expense for the employer. This means that your employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice her religion. For example, if you hold a bona fide religious belief that one should not work on the Sabbath, your employer cannot require you to work on the Sabbath, as long as this does not place an undue burden on your employer.

Whether your employer has violated your rights under Title VII or the TCHRA depends on a number of factors. First, not every employer is subject to Title VII and the TCHRA. Not every religious belief is protected by statute. There is no presumption that you personally hold a sincere belief that is entitled to statutory protection. It is wise to consult with an experienced labor and employment law attorney who can analyze these laws and how they apply to your case.

Age Discrimination

In today’s tough economic times, people are working longer than ever. Yesterday’s ideal of retirement at the age of 65 is a distant memory for most Americans. For this reason the workforce is older than ever before. Despite the presence of ever-increasing numbers of older Americans in the workplace stereotypes about older workers persist. For this reason the Age Discrimination in Employment Act (ADEA) was passed, protecting employees who are at least forty years old from discrimination based on their age. The Texas Commission on Human Rights Act (TCHRA), a state law, similarly protects workers forty years of age and older from age discrimination.

There are three kinds of age discrimination. The first, and most common, involves treating someone unfavorably because of her age. The ADEA and the TCHRA forbid age discrimination with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other “term or condition of employment.” Most managers are too sophisticated to admit that they are firing someone because of their age. For this reason “circumstantial evidence” is very important in age discrimination lawsuits. Courts are forever changing their views on which circumstantial evidence they will accept, however, so it is important to consult with an experienced labor and employment lawyer to get an idea of how strong your evidence of age discrimination is.

Another type of discrimination is less common but no less destructive. Harassment on the basis of age violates the ADEA and the TCHRA. With this type of age discrimination, you can recover against the company only if certain circumstances are present. First, you must show that the harassment was sufficiently severe or pervasive. To make this determination courts typically look at the level of the offensiveness of the conduct, the frequency or pervasiveness of the offensive encounters, the total length of time over which the encounters occurred, and the context in which the harassment occurred. You must also show that the conduct was subjectively and objectively hostile or abusive. You must also prove that the conduct was unwelcome, and that it was based on your age. Once you prove all of these things, the employer can still escape liability if it can show that it had in place a mechanism for remedying workplace harassment, and that you failed to seek redress through this mechanism. Or the company can escape liability by showing that it took prompt remedial action to redress the age harassment once the employee brought the conduct to the company’s attention.

A third type of age discrimination involves an employment policy or practice that applies to everyone that has a disproportionately negative effect on older workers. Unlike the other kinds of discrimination, this kind of discrimination does not necessarily involve an intention to discriminate. Contrary to popular belief, lay-offs, or reductions in force, can be carried out in an age discriminatory fashion. So simply because you were let go during a lay-off does not necessarily mean that the company did not engage in age discrimination.

Disability Discrimination

The Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act (TCHRA) are the two main statutes that protect Texans against disability discrimination in their jobs. Over the years the courts narrowly construed these statutes, making it virtually impossible for employees to prevail in these kinds of lawsuits. Recently, however, Congress passed the ADA Restoration Act of 2007, which does what its title suggests – it restores the statutory protections provided by the statute that were later taken away by the courts. As a result, unlawful disability discrimination is easier to prove in court, making it more likely to prevail in this kind of lawsuit than it would have been just three years ago.

The ADA and the TCHRA protect employees in two ways: first, an employee who has a disability and who needs some type of change in the terms or conditions of his employment can request a “reasonable accommodation” from his employer so that she can perform her job better. The employer then must give the employee a reasonable accommodation, unless providing such an accommodation would cause the employer an “undue hardship” on the employer’s business operations. An employer who refuses to make a reasonable accommodation that would not constitute an undue hardship violates the ADA and the TCHRA.

The ADA and TCHRA also prohibit discrimination on the basis of disability. These statutes place significant restrictions on what sort of questions an employer may ask an applicant, and they also provide that the employer may not change the terms, conditions or privileges of employment because of the employee’s disability. So long as a person with a disability can perform the “essential duties” of the job, with or without a “reasonable accommodation,” the employer cannot take any tangible adverse employment action against the employee on the basis of the person’s disability, such as firing, demoting, reducing pay or refusing to promote the employee.

Finally, the ADA and the TCHRA make it illegal for an employer to harass an employee because of her disability.

Because of the recent changes to the ADA the case law interpreting the ADA and TCHRA is in flux. For this reason it is important to consult with an employment attorney who is well-versed in disability discrimination law.