In a work world where the average tenure with any given employer is declining, many companies must routinely advertise and fill both new and established jobs. Yet as common as this process has become, every employer must periodically stop and re-evaluate how all job applications are being reviewed, skills tests are being administered and interviews are being granted and conducted.
After all, implicit bias (discriminatory hiring) remains a constant threat to maintaining an even playing field for all job applicants. And though most Texas employees are hired on an “at-will” basis, (allowing them to leave when they choose – and be fired without notice or cause), certain federal, state and local laws forbidding hiring discrimination must still be obeyed.
The most critical laws protecting employees against discrimination are set forth below, followed by examples of the types of hiring questions employers should avoid. Finally, the roles played by the TWC (Texas Workforce Commission) and the EEOC (Equal Employment Opportunity Commission) regarding employee complaints are also briefly noted.
Federal, state and local laws provide many anti-discrimination protections to Texas workers
Both federal laws and Texas statutes have been passed providing job applicants and employees with protections against discrimination on the following grounds.
- National origin
- Sex (including various medical conditions directly related to pregnancy)
- Age (40 and older)
- Genetic testing information
Federal law also provides specific employment discrimination protection to applicants who may not be actual U. S. citizens.
Federal laws and related regulations designed to protect workers against discrimination
- Title VII of the Civil Rights Act of 1964 (Title VII). This law was later amended to include The Pregnancy Discrimination Act
- The Equal Pay Act of 1963 (EPA)
- The Age Discrimination in Employment Act of 1967
- Title I of the Americans with Disabilities Act of 1990 (ADA)
- Sections 102 and 103 of the Civil Rights Act of 1991
- Sections 501 and 505 of the Rehabilitation Act of 1973
- GINA – The Genetic Information Nondiscrimination Act of 2008
Many of the legal rights guaranteed to Texas workers under the federal laws referenced above are also protected (and set forth) in Chapter 21 of the Texas Labor Code. Various Texas cities, including both Houston and Austin, have passed additional anti-discrimination laws to protect their residents with unique sexual orientation and gender identity issues. (Additional information about protecting employee rights is set forth on our Texas Governor’s website.)
Here’s some additional, pragmatic information for handling the job application process.
Company interviewers must carefully avoid asking job applicants these types of questions
While the following list is not intended to be comprehensive, it should heighten your awareness of how careful you must be when trying to learn more about applicants who may have certain special needs or limitations that are not directly related to legitimate job requirements.
- Do you have any disability? (However, if the applicant has a visually obvious disability — or has voluntarily disclosed one – you can normally ask if any special job accommodations are necessary or required);
- Are you currently taking any medications that might impair your ability to perform the assigned tasks as described?
- Have you needed to file any workers compensation claims in the past?
- Are you pregnant – or planning to have a child during the coming year?
- Have you obtained the results from any genetic tests during the past 10 years that indicate your likelihood of developing cancer (or another debilitating condition)?
- Have you ever suffered a heart attack or stroke? Do you have any close blood relatives who have suffered from either of these medical problems?
- Do you currently suffer from depression, bipolar disorder or schizophrenia – or do any immediate family members have these medical conditions?
Under some circumstances, once you’ve hired a new employee, you may be able to inquire about certain disability-related medical conditions. However, you should discuss all the specific conditions that must exist before asking these questions with your employment law attorneys to avoid violating any of the employee’s legal rights.
The TWC and EEOC help current (and prospective) employees with discrimination concerns
When individuals believe that they’ve endured discrimination while applying for work with your company – or while employed by you, they usually contact the Texas Workforce Commission and the EEOC while deciding whether to file a formal complaint.
Should you learn that such a complaint has been filed, be sure to immediately contact our law firm so we can help you prepare a thorough response, detailing all that your company did to fully respect all employee (or job applicant) rights. We can also discuss with you various proactive steps your company can take to try and decrease the chances of having any further complaints filed against you.