An overview of employment discrimination laws under Texas and federal law presented by Dallas - Fort Worth employment lawyer, Adam Kielich, principal attorney at The Kielich Law Firm in Bedford, Texas.

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P U R P O S E S A N D S H O U L D N O T B E C O N S T R U E D A S L E G A L
A D V I C E
Employment discrimination

2. What is employment discrimination?
ILLEGAL employment discrimination occurs when
an employer takes an ―adverse employment action‖
against an employee or job applicant on the basis of
a ―protected status‖.
 What is an ―adverse employment action‖?
 What is a ―protected status‖?
Anything not prohibited by law is fair game.

3. Adverse employment Action
A materially significant disadvantage with respect to
the terms or conditions of employment.
Includes: firing, demotion, failure to promote, failure
to hire, pay cuts, removal of job duties, removal of
title, reassignments, cutting hours

4. Protected status
Any status that the law prohibits discrimination
against. Includes both ―immutable traits‖ such as
race or sex as well as the exercise of statutory rights.

5. Protected Statuses
The protected statuses or classifications arise from
statute and ordinances at the federal, state and local
level. Until statute recognizes a status or
classification of people are protected from
employment discrimination, the employer is free to
discriminate against them.

6. Immutable traits
The majority of employment discrimination laws
prohibit discrimination on the basis of ―immutable
traits‖: traits that are fundamental to who a person is
and cannot be easily changed. Most of these are
fairly obvious.

7. Race/Ethnicity
Title VII, Section 1981 of the 1866 Civil Rights Act (
both federal) and Chapter 21 of the Texas Labor
Code prohibit discrimination on the basis of
race/color and ethnicity. Race and ethnicity are not
necessarily the same thing.

8. National origin
Title VII and Ch. 21 of the Texas Labor Code prohibit
discrimination on the basis of national origin – both
where you were born and where your family comes
from. Also not necessarily the same as race or
ethnicity.
Commonly occurs when employers enact unnecessary
―English-only‖ rules.

9. Religious discrimination
Title VII and Ch. 21 prohibit discrimination on the
basis of your religion. Includes normal
discrimination theories but also requires employers
to provide reasonable accommodations for religious
practices.

10. Religious discrimination
Religious accommodation is one that eliminates the
conflict between employment and religious beliefs
without creating an undue hardship for the
employer.
Undue hardship is easy to meet. Supreme Court says
―minimal costs‖ meets the burden.

11. Disability discrimination
Americans with Disabilities Act (and 2008
amendments) and Ch. 21 prohibit discrimination
against a qualified individual with a disability who
can perform the essential functions of the job with or
without a reasonable accommodation. Must prove
the employee or applicant is a qualified individual
with a disability and can perform the essential
functions of the job. Like religious
discrimination, includes a reasonable
accommodation requirement.

12. Disability discrimination
What is a disability:
 A physical or mental impairment that substantially
limits one or more major life activities (sleeping,
thinking, eating, walking, etc. – but not working)
Factors to consider:
 Nature and severity of impairment
 How long it will last
 Permanent or long term impact

13. Disability discrimination
Person with disability:
 Has physical or mental impairment that
substantially limits one or more major life activities;
or
 Has a record of a disability; or
 Is regarded as having a disability.

14. Disability discrimination
Qualified person with a disability: has all the attributes
necessary to perform the job with or without a
reasonable accommodation
 Can the individual perform the essential functions of
the job?
 If not, can the individual perform the essential
functions with a reasonable accommodation?
 If yes to either, then meets definition.

15. Disability discrimination
Essential functions of the job:
 Position exists to perform function;
 Limited number of employees can perform those
duties; and
 Function is highly specialized and person is hired to
perform it.

16. Disability discrimination
Reasonable accommodation for disability more
generous to employees than for religious practices.
Same language of ―undue hardship‖ but employer
must show substantial expense or difficulty.
Employer also has a duty to engage in a proactive
discussion about reasonable accommodation.

17. Genetic information discrimination
Genetic Information Nondiscrimination Act (GINA)
prohibits discrimination on the basis of genetic
information. For employment, usually relates to
genetic disorders or disorders passed through one’s
genes. Also includes discrimination on the basis of a
family member’s genetic information.

18. Age discrimination
Age Discrimination in Employment Act (ADEA) and
Ch. 21 prohibit discrimination on the basis of age
against employees age 40 and over. No protection for
younger employees, which means employers can act
favorably towards older employees.

19. Sex discrimination
Title VII and Ch. 21 prohibit discrimination on the
basis of sex and gender. Sex relates to one’s biology
(man, woman). Gender relates to stereotypes of
appearance, behavior and duties of each sex (male,
female). Includes discrimination against transgender
individuals because they do not conform their
appearance to their biological or birth sex. Does not
include sexual orientation.

20. Sex discrimination
Federal Pregnancy Discrimination Act also prohibits
discrimination against pregnant mothers on the
basis of their pregnancy. Includes a requirement that
employers give pregnant mothers the same light duty
requirements and leave time as other employees with
short term disabilities. Does not require greater
preferential treatment.

21. Sexual Orientation Discrimination
In Texas, neither federal or state law prohibits
discrimination on the basis of sexual orientation.
However, several of the larger cities have passed
local ordinances prohibiting discrimination on the
basis of sexual orientation or gender identity. These
laws are limited to the city limits.

22. NOT Protected Statuses
 Poverty/wealth
 What state you come from
 What sport teams you might root for
 Political affiliation
 Whether you drink (unless it implicates your
religion, pregnancy, or disability)
 Where you went to college
 Who you associate with (as long as it does not also
implicate a protected status)

23. But MAYBE…
 Education
 Criminal background
Stay tuned…

24. Ways Employers Discriminate Against Protected Statuses
 Disparate treatment
 Disparate impact
 Failure to accommodate
 Hostile work environment/harassment
 Retaliation

25. Disparate Treatment
Different treatment; intentionally treating an employee
or applicant less favorably than others on the basis of the
person’s protected status. Disparate treatment must
result in an adverse employment action. Must show
discrimination was ―because of‖ the protected status.
Compare the person complaining of discrimination against
―similarly situated persons‖ to prove different treatment.
For example, white applicant claims not hired because
white, look to see if other white applicants with similar
qualifications were hired.

26. Common Defenses to Disparate Treatment
 Bona Fide Occupational Qualification: employer
intentionally discriminates but does so because some
part of the job legitimately requires discrimination
 Example: Asian restaurant requires Asian chefs for
―authenticity‖ is a BFOQ and permits discrimination against
non-Asian chefs.
 Only available against claims based on age, sex and national
origin. NEVER acceptable on race or ethnicity claims.

27. Common Defenses to Disparate Treatment
 Business Necessity: employer’s policy is based on a
legitimate business purpose. Normally safety-based
justification.
 Example: Deaf applicant denied for U.S. marshall because the
ability to hear is a necessity for the safety of the marshall and
others. Although the applicant could use a hearing aid (a
reasonable accommodation) the aid could fail. The danger to
the public and the applicant was a legitimate business concern.

28. Disparate Impact
An employer’s policy or procedure is neutral on face but
has a discriminatory impact on employees or applicants
with a protected status. Most difficult theory to
understand and on which to prevail. Requires statistical
analysis.
Example: employer has neutral height/weight
requirements for job that has the effect of
disproportionately eliminating women applicants
because they are not tall enough and do not weigh
enough. That policy, although not intentionally
discriminatory, has the effect of discriminating against
women.

29. Disparate Impact
EEOC says educational requirements and criminal
background checks can result in a disparate impact
on some racial and ethnic minorities because they
tend to be disproportionately less likely to have high
school or college educations and more likely to have
arrest and conviction records. EEOC argues
employer’s requirements are not always related to a
legitimate business purpose (business necessity) so
the disparate impact is illegal. So far EEOC has not
gotten very far with these arguments.

30. Common Defenses for Disparate Impact
 Business necessity: same as disparate treatment.
Prove the policy has a legitimate business
justification even if it has a discriminatory effect.
 Disprove/discredit statistics.
 Reasonable Factors Other than Age (RFOA):
Basically same as business necessity but lower
standard for age-based disparate impact cases.
Probably enough to show employer had a ―good
reason‖ for the policy.

31. Failure to Provide Reasonable Accommodation
Religious discrimination:
 Employee must proactively request accommodation.
 Employer must grant a reasonable accommodation
unless there is an undue burden. Standard is so low
employer is always going to win unless the
accommodation had zero burden to employer.
 Employee does not have to get accommodation
requested, just a reasonable one.
 Once informed, employer has duty to engage in
interactive process with employee to find a
reasonable accommodation

32. Failure to Provide Reasonable Accommodation
Disability discrimination:
 Same premise but employer must show undue
hardship is a substantial burden. Employee is more
likely to defeat employer’s argument that no
reasonable accommodation was available.
Both:
 Failure to engage in the interactive process is enough
to prove discrimination claim, even if no reasonable
accommodation would have been likely. Interactive
process is mandatory.

33. Harassment
Harassment occurs when:
 The employee suffered unwelcome, offensive
conduct that is severe or pervasive (hostile work
environment); or
 Enduring the offensive conduct becomes a condition
of continued employment (quid pro quo).

34. Harassment
Quid pro quo: enduring the offensive conduct becomes
a condition of continued employment.
 Supervisor requires the employee to do
something/not do something to keep a job, get a
raise, get a promotion, etc.
 Generally only applies to sexual harassment where
supervisor wants the subordinate to engage in
romantic or sexual activity with the supervisor or
somebody else

35. Harassment
Hostile work environment: unwelcome, offensive conduct
that is severe or pervasive.
 Not a general civility code; has to be more than petty
comments or stray, isolated comments
 Must be both objectively and subjectively offensive
 Severe or pervasive:
 Severe: usually refers to unwelcome touching; can be a single event
(e.g. attempted sexual assault)
 Pervasive: ongoing behavior
 Does not have to be directed at the employee
complaining, the employee need only be exposed to it
 Perpetrator can be supervisors, co-
workers, contractors/vendors and customers

36. Liability for Harassment
Tangible employment action:
 Some adverse employment action is taken by a
supervisor
 Can be quid pro quo or part of a larger hostile work
environment
 Constructive discharge (see next slide) plus a non-
termination adverse employment action will result in
the constructive discharge being treated as a tangible
employment action

37. Liability for Harassment
No tangible employment action:
 Employee does not have to suffer tangible employment
action but must prove hostile work environment (severe
or pervasive) was so objectively offensive that it altered
the conditions of employment (circular definition:
conditions are altered if it is severe or pervasive)
 Same standard for constructive discharge but employee
can prevail without quitting
 No bright line test; look at each case based on specific
facts
 Constructive discharge with no adverse employment
action – have to show employee quit due to altered
conditions of employment

38. Liability for Harassment
Quid pro quo: employer is strictly liable because the
supervisor used his or her authority as an agent of
the employer to affect discrimination. Agent stands
in the shoes of the principal (employer).
Tangible employment action in hostile work
environment: Same standard.
No tangible employment action: liable if employee
proves severe or pervasive and employer cannot raise
affirmative defense

39. Liability for Harassment
No tangible employment action:
 Non-supervisor perpetrators: employee must prove
employer was negligent in allowing harassment to
continue
 Employer knew or should have known about harassment
 Supervisory perpetrators: employers have
Ellerth/Faragher affirmative defense

40. Ellerth/Faragher Affirmative Defense
Employer is not liable if:
1. It reasonably acted to prevent and correct
harassment; and
2. Employee unreasonably failed to take advantage of
the employer’s preventative or corrective
procedures
If following procedures would be futile then employee
does not have to follow employer’s procedures

41. Retaliation
Employer attacks employee for complaining about
discrimination
1. Employer takes adverse action or engages in
harassment;
2. Of a covered person;
3. For engaging in a protected activity
Retaliation claims can prevail even if the underlying
discrimination allegation is unproven or is even
disproven

42. Retaliation
Adverse action or harassment: punishing or
intimidating employee
Covered person: Person who was target of
discrimination and complained, person who
participates in an investigation of
discrimination, person who complained of
discrimination even if not the intended target of
discrimination and people who are retaliated against
as a collateral attack on a person complaining of
discrimination or participating in a discrimination
investigation

43. Retaliation
Protected activity:
1. Opposing discrimination: complaining, threatening
to file discrimination charge, refusing to
discriminate against another employee
2. Participating in an employment discrimination
proceeding: participating in an internal or external
investigation, filing a charge, testifying in a
deposition or trial

44. Switching Gears
All protected status/classification-based
discrimination is commonly thought of as
―employment discrimination‖ but many other
employment-related statutes have anti-
discrimination provisions that prevent retaliation for
exercising certain statutory rights or participating in
investigations of illegal activity. These anti-
discrimination provisions are normally not thought
of as part of ―employment discrimination‖ but
should be thought of in the same context because the
same harassment and retaliation frameworks apply

45. Beyond Protected Statuses
Generally only going to prevail on these provisions
when employee exercises statutory right/participates
in investigation and employer retaliates through an
adverse employment action or creates a hostile work
environment.
No disparate impact, reasonable accommodation, but
limited disparate treatment application.
Next few slides are common anti-discrimination
provisions—but not exhaustive list

46. Employee Retirement Income Security Act
ERISA protects most private employer benefit plans.
Prohibits retaliation against employees who attempt to
exercise rights under ERISA-protected benefit plans
(such as demanding payment of health care
benefits).
Also prohibits terminating employees to avoid vesting
in benefits (such as terminating employees before
they can reach vesting in pension benefits).

47. National Labor Relations Act
Protects rights of employees to engage in ―concerted
activity‖ to improve work conditions (unionize).
Prohibits retaliation for exercising statutory rights
(joining union, soliciting for union representation,
stating pro-union views) and participating in
investigation of violations of the NLRA.
Also prohibits discrimination in hiring/promotion on
the basis of pro-union beliefs or prior union
involvement.

48. Occupational Safety & Health Act
OSHA protects worker safety in the workplace.
OSHA prohibits retaliation for employee internal or
external whistleblowing on OSHA violations.
Also prohibits retaliation for participating in internal
or external investigations of violations.

49. Workers Compensation
Workers compensation is a no-fault system of
compensating employees for workplace injuries.
Texas Workers Compensation Act prohibits retaliation
for exercising statutory right by filing claim for
workers compensation benefits.
Also prohibits retaliation for participating in
investigation of a workers compensation claim.

50. Family Medical Leave Act
FMLA protects short term medical leave to care for
employee or family member (typically 12 weeks).
Prohibits retaliation against employee who requests
FMLA leave or takes FMLA leave.

51. Fair Labor Standards Act
FLSA and Texas Payday Act protect rights to minimum
wage, overtime pay and various other pay-related
claims.
Prohibits retaliation for making internal or external
wage claims for missed/late/unpaid wages.
Also prohibits retaliation for participating in internal
or external investigation of wage claim.

52. Whistleblowing Protections
Various other federal and state laws prohibit
retaliation for internal and/or external
whistleblowing. Typically also prohibit retaliation
against employees who participate in internal and
external investigations of the alleged illegal activity.
For example:
 Sarbanes-Oxley protects whistleblowing on certain
finance-related activities;
 Clean Air Act protects whistleblowing on violations
of emissions standards.

53. Sabine Pilot
Texas common law protection for employees who
refuse to engage in a criminal act when the employer
demands the employee perform the criminal act or
be fired.
Also protects employee placed in that decision when
the employee contacts a lawyer or government
agency to determine the criminality of the requested
act.