Texas law is friendly to employers. In Texas, employees can be fired for any reason or for no reason; they just cannot be fired for an “illegal” reason. The illegal reasons include age, race, sex, disability and many instances of whistleblowing. A few Texas cities have ordinances making it illegal to discipline or discriminate against an employee because of the employee's sexual preferences and gender identity.
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Because motive is a primary issue in employment cases, it is imperative that the employee gather evidence of the employer's motive. Examples of evidence that have proven useful to me over the years include testimony of current or former co-workers, emails, personnel policy handbooks, recordings of telephone calls and meetings. (In Texas, it is legal to record a conversation to which you are a party.) If you have access to the names and contact information for former employees, save it. Useful evidence can frequently be gleaned from people who are not afraid of losing their jobs.
In employment cases, time limits are very short. While you have two years to file suit on car wrecks and similar cases, most employment lawsuits are barred unless a complaint is filed with the EEOC within 180 days of the discriminatory event. Some employment cases have a longer time frame; but, others have an even shorter time frame. It is important to get legal advise very early, preferably before you resign or are fired.
Issues include termination of employment or other adverse employment actions based on race, sex, age or pregnancy.
Not all discrimination is illegal. Employers may legally discriminate against employees or potential employees with long hair or facial piercings, for example. An employer may legally discriminate in favor of a family member or friend. An employer may legally discriminate against someone with whom he or she has a personality conflict.
In almost every case, you will be required to show that the employer intended to discriminate against you on the basis of one of the protected categories, such as sex, race, age, religion, pregnancy or disability. Generally, that will involve showing how a similarly situated employee who is not in the “protected category” was treated better than you were. You must have more that just a “feeling” that the adverse employment action was due to your age, race, sex, etc.
In addition, under Federal law and under Texas law, employers who employ fewer than 15 employees are not covered by most anti-discrimination laws. There are some common-law remedies that can be used to avoid this restriction, but they are not applicable in all cases.
The Civil Rights Act protects employees and applicants from discrimination on account of pregnancy, childbirth and other related medical conditions. The pregnant employee cannot be treated worse than any other employee with a short term disability. Accordingly, it is important to have information on how other pregnant employees have been treated, as well as how other employees with short term disabilities have been treated.
The Americans with Disability Act was inacted by Congress to help people with disabilities obtain and maintain employment so that the government's expenditures for Social Security Disability payments would decrease. However, many courts (most notably the United States Supreme Court) have severely restricted the breadth of the ADA. This area of the law is very, very fact intensive and will nearly always require a close working relationship with your primary physician.
Although the law which makes sexual harassment illegal was passed by Congress in 1964, it wasn't until 1986 that the Supreme Court recognized that sexual harassment is a violation of the Civil Rights Act.
Sexual harassment is defined as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
The federal and Texas law which makes sexual harassment illegal only applies to employers with 15 or more employees. However, many acts which constitute sexual harassment also constitute common law torts. For example, an unwanted touch is an assault if the person touching you knew or should have known that the touch was unwanted and provocative. Accordingly, you should call an attorney if you have been sexually harassed, even if the employer has fewer than 15 employees.
Like other forms of discrimination, the time deadlines are very short. If you intend to pursue a case, it is important to get legal advice very early. Preferably, you should contact counsel before you quit or before you are fired.