Most Common Hiring Discrimination Complaints

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.

  • Race
  • National origin
  • Color
  • Religion
  • Sex (including various medical conditions directly related to pregnancy)
  • Age (40 and older)
  • Genetic testing information
  • Disability

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.

What Really Constitutes Sexual Harassment in the Workplace?

The latter part of 2017 may always be remembered as a watershed time in America’s cultural history regarding sexual harassment. After numerous women stepped forward and complained about the allegedly crude sexual behavior of Hollywood film producer Harvey Weinstein(1) and other men in high-ranking entertainment and news media positions, major corporations responded swiftly.

Men like Charlie Rose, the Today Show’s Matt Lauer – and even Garrison Keillor(2) were suddenly fired or saw valuable work contracts cancelled. Perhaps the earlier charges against Bill Cosby involving at least 50 women had played a role in convincing the public that far too many women may actually be suffering routine sexual harassment. Whatever caused this seismic shift in consciousness, a clear message was sent that all offensive sexual behavior in the workplace – regardless of the victim’s gender — must stop now.

However, since a small number of people still question some of these allegations, that issue should be briefly addressed now – before explaining much more basic information about what legally constitutes sexual harassment.

Are False Reports of Sexual Harassment Common?

Women usually gain nothing when sharing past stories about sexual harassment and abuse – especially when most are not rushing to nearby courthouses to file charges against those who mistreated them. There is no pride in sharing such stories – only a sense of vindication when believed. Furthermore, false reports of sexual harassment are rare. In fact, it’s currently estimated that they only constitute about five to seven percent of all allegations.

What follows now is a brief survey of how the EEOC (Equal Employment Opportunity Commission) and others define sexual harassment, along with specific examples of sexually offensive words and behaviors that should never be tolerated in any work-related environment. After all, everyone is more productive when treated with respect.

How Does the EEOC Define Workplace Sexual Harassment?

This unacceptable activity usually includes offensive words or behavior directed toward job applicants or employees by people in positions of authority (or co-workers). However, in some instances, sexual harassment can also include an employer’s customer or client behaving in a grossly offensive manner toward an employee.

All employers must recognize that sexual harassment is a type of sexual discrimination that is forbidden by Title VII of the Civil Rights Act of 1964. That law covers all workplaces with 15 or more employees – including people working for state and local governments. It also applies to members of labor organizations and those working for employment agencies and the federal government.

Sexual harassment may often be considered so offensive that a reasonable person might describe the workplace atmosphere as being intimidating or hostile. Although most sexual harassment tends to be directed at women – it should be emphasized that women may also be found liable for this type of illegal behavior.

While no list could ever fully indicate every set of words or behaviors that constitute sexual harassment, there’s one posted on the website of the United Nations that provides helpful guidance.

Words and Actions Frequently Considered Sexually Inappropriate in the Workplace

  • Repeatedly asking the same person to go out on a lunch date (or to various social events) with you when no special interpersonal relationship has been consensually established;
  • Touching other workers when there is no excuse to do so – or rubbing up against someone when there’s plenty of room to avoid doing so while handling your job;
  • Making offensive gestures with your fingers, hands or body in a manner that suggests that you would like to have sex with someone;
  • Handing out (or posting) offensive drawings or pictures involving sex that a reasonable person would know might be offensive to some people;
  • Making noises or sounds as though kissing another person or having some type of sex with them;
  • Spreading false sexual rumors about co-workers or others in the workplace in hopes of jeopardizing their job security;
  • Repeatedly telling jokes or stories about sexual “conquests” that others might consider offensive;
  • Looking at others in a manner that indicates that you are “sizing them up” sexually in a suggestive manner.

If you still find it hard to decide what’s acceptable workplace behavior – then always act as though every interaction you have with others at work is being videotaped and recorded. Better yet, simply treat everyone with the same level of respect in the workplace that you normally show to your most important clients or customers.

Please feel free to contact our office if you need help drafting the “sexual harassment” sections of your employee handbook or need advice on evaluating appropriate workplace training programs that address this topic. We can also help you evaluate any formal or informal sexual harassment complaints that employees may have filed with the EEOC or your human resources department.

(1) https://www.barna.com/research/behaviors-americans-count-as-harassment/?utm_source=Barna+Update+List&utm_campaign=59e62a6e6f-EMAIL_CAMPAIGN_2017_11_28&utm_medium=email&utm_term=0_8560a0e52e-59e62a6e6f-171985045&mc_cid=59e62a6e6f&mc_eid=c0385fd205

(2) https://www.barna.com/research/behaviors-americans-count-as-harassment/?utm_source=Barna+Update+List&utm_campaign=59e62a6e6f-EMAIL_CAMPAIGN_2017_11_28&utm_medium=email&utm_term=0_8560a0e52e-59e62a6e6f-171985045&mc_cid=59e62a6e6f&mc_eid=c0385fd205