Types of Employment Discrimination
Generally it is illegal to discriminate against someone in the workplace based on any of the following “protected traits” or “protected classes”:
- Race / color / national origin
- Gender / sex / pregnancy
- Disability
- Age (40+ years old)
- Religion
- Genetic Information
- Military Status
These are the primary situations in which someone can be the victim of employment discrimination.
What is a "protected class" or a "protected trait"?
Employment discrimination must be based on a “protected class” or “protected trait,” such as those listed above (race, gender, disability, etc.)
If a person is fired simply because their boss does not like them, that is not employment discrimination.
Similarly, if someone is targeted or picked on by their supervisor because they are having workplace performance issues, that is probably not employment discrimination (except in limited situations involving retaliation).
What is employment discrimination?
A lot of different things can be considered employment discrimination. The primary law prohibiting employment discrimination—Title VII of the Civil Rights Act of 1964—is intentionally broad, prohibiting an employer from “fail[ing] or refus[ing] to hire” or “discharg[ing] any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment[.]”
Common employment discrimination actions are when an employer takes one of the following actions because of a protected trait:
- Refusal to hire
- Being fired / discharged / terminated
- Failure to promote
- Harassment or hostile work environment
- Failure to provide a reasonable accommodation (disability and pregnancy cases)
What is retaliation?
Retaliation is another form of employment discrimination. Employers cannot retaliate against their employees for reporting employment discrimination or participating in the process of investigating employment discrimination (e.g., as a witness). Those actions are known as "protected activities."
Simply put, employees must be allowed to engage in protected activities because that is the only way the laws can be enforced. An employer interfering with or punishing protected activities is retaliation.
In some limited situations, retaliation is also prohibited against someone other than the employee involved in the protected activity. For example, if a husband and wife both work for the same employer, and the wife reports pregnancy discrimination, the employer cannot retaliate against the husband (or the wife, obviously).
Is the EEOC involved?
Yes. In almost every case, a person wanting to pursue a lawsuit for employment discrimination must first “exhaust administrative remedies.” In the employment discrimination context, that means filing a charge with the Equal Employment Opportunity Commission (EEOC).
Texas has a state law that prohibits employment discrimination, so the EEOC has partnered with the Texas Workforce Commission Civil Rights Division (TWCCRD) to process charges together.
After filing a charge with the EEOC and/or TWCCRD, the case is first referred to mediation. If the parties agree to mediate, and if they resolve their case, that ends the case. If either party declines mediation, or if mediation is not successful, the case is sent for investigation. At the end of the process, which can take 6-18 months, a party is issued a right to sue letter, which allows them to file a lawsuit.
My boss is the same protected class as me. Can they discriminate against me?
Yes. It is a common misconception that someone of a certain protected class cannot discriminate against someone of the same protected class. For instance, many people believe that a female cannot commit gender discrimination against another female. That is incorrect.
Consider an example of a company whose CEO is a 60-year-old male. He thinks the company’s middle management is too old and too male, so he directs that all new manager promotions must be females under the age of 40.
This would be illegal, as it is both gender and age discrimination.
These cases are nuanced and very fact-specific. But employees can be discriminated against in such circumstances.
Employment Discrimination v. Wrongful Termination
What is wrongful termination?
Wrongful termination generally occurs in three situations:
- Someone is terminated (fired) in violation of various anti-discrimination laws, which is the same thing as employment discrimination;
- Someone is terminated (fired) in breach of a contract;
- Someone is terminated (fired) because they engaged in some sort of whistleblower activity.
What does it mean to be a "whistleblower"?
This term is thrown around a lot in the media, but it is a term of art in employment law. Many people who claim to be whistleblowers are no such thing. Casting oneself as a whistleblower is not a free pass to simply talk poorly about your current or former employer.
A true whistleblower is generally (1) someone who has reported employment discrimination, in which case the person is protected by the anti-retaliation laws, or (2) someone who has reported other illegal activity that their employer is engaging in.
For this second category—reporting other illegal activity—Texas has its own law applicable to government employees that protects them when coming forward and reporting illegal activity. There are also a variety of federal laws that offer similar protection; for example, the Occupational Safety and Health Administration enforces more than 20 federal laws that prohibit retaliation for reporting a violation. Some of these laws allow for a lawsuit if violated; others do not.
How does employment-at-will impact things?
Texas is an employment-at-will state. Employment-at-will means that either the employee or the employer can terminate employment at any time—for no reason or for any reason not prohibited by law. That may sound confusing, but it basically means that either party (employer or employee) can terminate employment whenever they want, except in the limited circumstances the law says otherwise.
Employers often hide behind this and claim it shields them from lawsuits for firing someone. But it is still possible for an employer to commit wrongful termination in Texas.
Experienced Employment Discrimination Lawyers
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