Texas' EEOC filings have steadily risen during the three years of available data. During fiscal year 2009, they had 8,748 claims, or 9.4% of claims in the U.S. In 2010, they had 9,310, or 9.3%. For 2011, the numbers jumped to 9,952, or 10% of the nation's claims.
The data sets also provide numbers and percentages of types of claims. Out of the EEOC provided categories, these are the five most popular claims for 2011. Because some litigants claim multiple forms of discrimination, there may be people who are in multiple categories.
]]> Retaliation (All forms) - 41.0%Retaliation is where any punishment occurs, such as firing the employee, giving them negative evaluations, or reducing their pay, in response to a complaint about harassment or discrimination. Protection against retaliation extends to those who participate in the investigation that arose from the complaint as well.
A local example of this prohibited practice is the John Crane Production Solutions case. When one of their field technicians complained about not receiving pay for overtime worked, he was allegedly retaliated against in the form of unpaid leave and eventually termination.
Race - 36.3%
Race based discrimination obviously covers blatant discrimination against someone due to their race or ethnicity. However, it also covers decisions that though on their face may not have a racial component, they do have a "disparate impact" on certain racial groups.
A pending class-action lawsuit against British Petroleum alleges that the oil company used race as a factor when they decided which local fishermen to employ during the Gulf Oil Spill cleanup. Though over half of the fishermen affected by the spill were Vietnamese and Cambodian-Americans, they made up less than 10 percent of the workforce.
Sex - 29.4%
Gender or sex discrimination is providing favorable or unfavorable treatment in regards to hiring, pay, promotions, or other work-related decisions to someone based on their biological sex or gender.
The recent viral story of Sarah Tressler, the reporter/stripper/professor who was fired from the Houston Chronicle, allegedly due to her side career as a stripper, is arguably an example of gender discrimination. A better example would be the Mia Macy case, where the EEOC expanded gender discrimination to cover transsexual individuals as well.
Disability - 23.5%
For those who are disabled, employers are required to make reasonable accommodations for employees that are still able to perform the essential functions of the job. They are also required to allow leave for those that need temporary time off from their job. They also cannot refuse to hire someone who suffers from a disability but is able to perform the job's essential functions.
Last week, we covered the story of Janet Hustus, a grandmother who was laid off after taking medical leave for breast cancer treatments. She alleges that she was fired so that her employer's insurance would not have to cover her medical bills.
Age - 21.3%
The fifth most common form of discrimination claim, which is becoming ever more important due to the baby boomer inching toward retirement age, is age discrimination. Often, these cases involve forced retirement due to age or outright termination. It can also include other employment decisions, such as hiring and promotions. The most used law in this area, the ADEA, protects those who are at least 40 years old.
Late in 2011, Plano-based Dr. Pepper Snapple Group was bench-slapped with an $18.3 million verdict in an age discrimination case. The alleged conduct involved placing those with more than twenty years of tenure in more strenuous jobs in order to force them to quit or become too injured to work.
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How many of the thousands of job ads that you’ve reviewed refer to “seasoned” employees or “recent grads only.” How many ads for “salesman” have you seen?
Although these are all subtle phrases, likely not meant to be discriminatory, if an employer is limiting its job search based on restricted characteristics, such as age, gender, race, or disability, they may be violating your rights even if you are not an employee.
]]> Now, we're not recommending going around and suing everyone with a poorly-written ad, though that would certainly be an interesting way to spend your free time. It might even create a job for a lawyer or two.Instead, we believe that it is important to know your rights and what your potential employer has the right to consider in the hiring process. That's where the FindLaw Guide to Hiring comes in.
Among the questions addressed in the guide are:
This job market is bad enough in this soul-crushing economy. Job seekers should not have to fight an uphill battle due to discriminatory employers.
Check out the free FindLaw Guide to Hiring, and if you have any questions afterwards, feel free to drop by our FindLaw Answers section and ask our community for help.
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“I was a stripper/reporter/professor and now I’m just a stripper/professor, and I don’t think that’s too bad,” Tressler said to ABC News.
]]> According to ABC, some have speculated that the entire double-life was done as a way to get a book deal. Sarah chronicled her experiences on her blog, Diary of an Angry Stripper, under the name "sarahtress," which doesn't exactly seem like she was trying to hide her identity.Then again, should she have to? The Chronicle has not commented on the issue, but from Tressler's attorney's statements, it seems that the reason behind the firing had something to do with not reporting her stripping job when she applied for a full-time position at the newspaper.
Her attorney also pointed out that because Tressler was an independent contractor for the strip clubs, she was not technically employed and therefore did not have to report the side work, reports USA Today.
Sarah Tressler is represented by the (in)famous Gloria Allred.
The more interesting legal issue surrounds Tressler's complaint with the Equal Employment Opportunity Commission (EEOC). Tressler's one-page complaint alleges gender discrimination.
Wait what? She was fired for being a stripper and for lying on her application, not for being a woman ... right? Maybe not.
This is what we call creative lawyering. Much like the Pepsi case that we covered recently, Tressler's lawyer seems to be using a disparate impact theory to claim gender discrimination, reports CNN.
Essentially, the argument begins with the assumption that strippers are predominantly female. To fire people for being a stripper results in a disparate impact on females, who are a protected class under the law. Voila, gender discrimination.
The same logic was pursued by the EEOC against Pepsi. Those with criminal records are predominantly minorities. Background checks dig up that criminal history, resulting in a disparate impact on minorities. Voila, racial discrimination.
Pepsi settled the case for $3.1 million and the EEOC released new guidelines on whether or not background checks should be used in employment decisions.
Could the same result happen here?
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Unemployment benefits are available to those who are out of work though no fault of their own. Examples of applicable situaitons are those who were laid off, had their hours cut, were fired without work related misconduct (such as violations of law or company policy), or quit for good reason, such as unsafe working conditions or not being paid.
]]> The first place to start is at the Texas Workforce website. They provide resources that will help you estimate potential benefits, apply for benefits, check claim status and payment history, and view your tax information. You should also download this handy tutorial, which will walk you through the entire application process.One of the requirements to receive unemployment benefits to be actively searching for a new position. WorkInTexas.com has its own online job resource where you can register for job search assistance.
And should you be rejected for benefits, you'll surely want to appeal the decision. To appeal, you'll need to send a letter to the appeals department, requesting a hearing, by the deadline listed on your notification letter. The appeal should have:
More information, as well as all of the intricate details on the appeals processes, different levels of appeals, and the post-appeals process is available at the TWC's Appeals page.
Unemployment is rough, but the important thing to remember is that it is only temporary. As long as you are eligible for benefits and actively seeking work, the State of Texas can help you to support yourself and your family until you are able to find a new position. Best of luck!
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Janet Hustus' employer did exactly what employers are required to do, at least until they fired her, reports ABC News.
Her employer says she was let go, four days after returning to work, due to "unrelated issues." They had to cut back departments and hers was on the list. But Hustus thinks it was due to insurance costs, as she had multiple follow-up surgeries left.
]]> Though Hustus ended up finding a new job, she still amassed medical bills due to being uninsured and unemployed. Now, she's suing for wrongful termination. The question is, what damages can she claim?Often times, when people immediately find new jobs, there is no legal recourse in a civil court. One of the fundamental elements of any civil suit is to demonstrate damages. If you are fired, yet immediately find a job that is the same or better, then your damages are probably limited unless you can get punitive damages (see below). Most of the time, in these situations, it probably wouldn't be worth your time and money to hire an attorney to get a couple of week's worth of wages.
It's a different story for Janet Hustus. If she can prove wrongful termination, not only can she get those lost wages, which probably aren't much, but she can also be compensated for the medical bills. The recovery would be limited to whatever amount they exceed what they would have been she not been terminated. So, if her insurance would have covered 90% of the bill, and she had to pay 100% out of pocket, she could probably get that 90% back.
Under Texas law, punitive damages are also allowable, if the employer's conduct was "outrageous, malicious, or otherwise reprehensible." Certainly, a jury could find that firing a woman for having breast cancer is reprehensible, assuming she can prove it. Punitive damages are capped at $200,000 in Texas.
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To Houstonians, good faith dealing amongst CEOs and city officials doesn't really matter. What does matter is whether it will be good or bad for the city's economy and job market. The answer to that question is so far unclear, reports the Houston Chronicle, as a competing airline and the Houston Airport System have each released conflicting studies on the impact of a potential Hobby Airport expansion.
]]> Competitor United Airlines had its experts do a study on what they think the economic impact will be. The numbers predict doom, including 3,700 lost Houston jobs and $295 million annually in lost economic activity, reports the Chronicle. They claim that the opposing study, done by the Houston Airport System, is flawed in how it calculates airfares.For one example, it claims that flights to Bogota, Columbia will fall from $739 to $133. United says such a fare would lose Southwest $9.6 million annually, and the combined proposed fares in the study would amount to a staggering $76.3 million loss annually.
United also claims that due to the increased competition from making Hobby Airport international, Bush Airport would lose 5,000 jobs and $414 million annually, offset only in part by the creation of construction jobs at Hobby. They have suggested that Southwest use Bush Airport instead, but Southwest has declined, citing their base and investment at Hobby.
United, after merging with Continental Airlines, is the major service provider at Bush Airport. A study done by them on the impact of a competitor's expansion should probably be taken with a bit of skepticism.
The Houston Airport System's competing study claims that the Hobby expansion will be a boon, creating more than 10,000 jobs and injecting $1.6 billion annually into the local economy. The Chronicle cites experts that say that both studies are faulty and the truth lies somewhere in between.
Though the requirement of "good faith" bargaining doesn't ensure that Hobby Airport will indeed be expanded, it does set the process in motion. Assuming Southwest doesn't make outrageous demands due to their leverage in the situation, the city will probably end up conceding to an airport expansion. However, if Southwest overreaches and doesn't bargain in good faith, a deal could still collapse.
For better or worse, it seems the job market for Houston airlines is about to experience a massive shakeup.
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BP attempted to help tide over some of the fishermen by hiring them to assist in the cleanup efforts. However, it seems that they may have been choosing their charitable recipients based on race, reports The Louisiana Weekly.
]]> A lawsuit, filed last month, alleges that BP hired an overwhelmingly non-Asian workforce, even though the majority of the fishermen in the area are Asian-American. The numbers illustrate the issue more than words ever could. Over half of the fishermen affected by the spill were Vietnamese and Cambodian Americans. They only made up less than 10 percent of the workforce hired for cleanup.Attorney Ryan Beasley, of Harvey, Louisiana, represents the class. His suit on their behalf states that during the cleanup program, BP sent emails to Danos and Curole Marine Contractors, LLC in Larose, La. and DRC Emergency Services, LLC, in Mobile, Ala., telling them not to hire vessels owned by Vietnamese and Cambodian Americans.
If these emails are the metaphorical smoking gun that they sound like, this could cost BP a lot of money.
BP may have avoided hiring Asian-Americans due to language barriers and the increased cost of having translators on staff. If so, is this an example of the old adage, penny-wise and pound-foolish?
Racial discrimination in employment decisions is obviously against the law. The remedy for such violations is usually via filing the catch-all Section 1983 action for alleged violations of Constitutional rights. The action emerges out of Civil Rights litigation and allows anyone who has had their civil rights violated, whether it be through employment decisions or police brutality, to sue for damages.
Because of the large number of potential litigants, a class-action lawsuit on behalf of all of those discriminated against was filed. Class-actions allow litigants on both sides to save time and money by not litigating a claim in thousands of individual cases. It also keeps the court system from collapsing under the load.
In BP's defense, they did hire some translators for the workers that they did end up hiring. And their hiring practices may not have been motivated by race at all; some have speculated that they were motivated instead to hire non-local contractors to maintain confidentiality as to the extent of the spill and the damage. There is a lot of evidence to support these claims as well.
Whether this results in a mountain of legal fees, quick settlements, or a massive judgment against them, it looks like the bill for BP's oil spill just got that much more expensive.
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The case, which has since settled, involved a severely obese woman working at a home for those fighting chemical dependencies. Lisa Harrison worked as a prevention/intervention specialist at Resources for Human Development's Family House in Louisiana from 1999 until late 2007. She was terminated by RHD, despite supposedly being able to fulfill all of the essential functions of her position.
Though Harrison passed away in 2009, the EEOC continued the suit on her estate's behalf.
]]> The settlement came shortly after the court issued an opinion rejecting a motion for summary judgment by RHD. The court stated that not only is severe obesity an ADA-protected impairment, but it is irrelevant whether the underlying cause of the disability is physiological or due to lack of willpower. The EEOC, on behalf of Harrison, had an expert testify that her obesity was physiological, but the court stated, "neither the EEOC nor the Fifth Circuit have ever required a disabled party to prove the underlying basis of their impairment."What does this mean for employers? Employers must now treat severely obese employees as they do any other disabled employee. Severe obesity is defined as being more than 100% overweight. This means reasonable accommodations must be made if necessary, such as specialized equipment or medical leave.
It is important to remember that reasonable accommodations only go so far. Employees, disabled or not, must still be able to perform the essential functions of the job. If you, as an employer, are unsure if the requested accommodations are reasonable, or are unsure about terminating an employee with a protected disability, it is important to seek counsel with an attorney prior to making an employment decision.
As for the Resources for Human Development, they settled the case for $125,000 to Lisa Harrison's estate, plus retraining of their HR Department on federal disability law and three years of monitoring by the EEOC on any requests for reasonable accommodation.
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Pepsi used background checks on all potential employees, which included arrest records and convictions. The checks were also done regardless of the importance of job and the relation of the employee's criminal past to their position with the company.
The process resulted in a disparate impact on minority candidates.
]]> The EEOC maintained that background checks should only be done when the applicant's history is "job-related and of business necessity." Pepsi capitulated, cut a check, and changed their internal policies.Last week, the EEOC released new 'guidelines' about when and where and how background checks should be conducted. The new rules sound a lot like the statements made in the wake of the Pepsi settlement, and some attorneys interpret the new rules to place a presumption that considering criminal history is illegal due to the disparate impact on minorities, reports MSNBC.
In short, if you want to use background checks, you’d be well advised to show that they are necessary and related to the job description, especially if the EEOC does eventually come calling. You also shouldn’t consider really old convictions or arrests that didn’t lead to a conviction.
An EEOC spokeswoman is quoted as saying that the EEOC does not have the authority to ban the use of criminal background checks or arrest records, but they do want to make sure it is done carefully. Otherwise, they might sue you like they did to Pepsi.
The numbers, courtesy of MSNBC, do shed an interesting light on the problem that the EEOC seeks to address. For example, 73% of employers do background checks on all employees. Only one in seventeen white males will see the inside of a prison cell, while one in three black males will.
A disparate impact does seem likely if background checks are used across the board.
However, are there actually any jobs out there where the employee's background is completely irrelevant? Also, though it does make sense on the surface to prohibit the consideration of arrests not leading to conviction, someone with a lengthy list of arrests for larceny that was too clever to ever be convicted probably shouldn't be handling, say, deliveries to a jewelry store.
While the EEOC is pushing forth with the noble cause of protecting the rights of protected classes, they might also be making it more and more difficult to employ anyone in a time where this country needs as many jobs as possible.
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Basically the Obama administration is engaged in revamping some of the disability rules. But since this discussion is taking place in secret, the U.S. Chamber of Commerce is starting to feel uneasy and is pressing for more public comment.
]]> The particular issues at stake would direct employers on compliance with the Americans With Disabilities Act regarding issues such as extended leave and making accommodations for disabled workers.Disability discrimination violates the Americans With Disabilities Act (ADA). The ADA protects "qualified individuals with a disability" from discrimination in employment. An individual with a disability is qualified if he or she has "the requisite skill, experience, education and other job-related requirements" for the job.
To be protected under the ADA, a disability must be considered a substantial (as opposed to minor) impairment.
Also, you must be qualified to adequately perform the essentials of the job, whether or not you require a reasonable accommodation, in order to be covered by the ADA. That means you must fulfill the requirements for the job (education, experience, skills, etc.) and you must be able to perform the essential functions of the position.
To learn more about substantial impairment and disability discrimination please check out the resources below or speak to a qualified Houston area employment attorney. Unfortunately an attorney won't be able to help you with activism. For that you should turn to the Chamber of Commerce.
For more general information, you can turn to the resources listed below.
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The U.S. Equal Employment Opportunity Commission, considering a case about an individual named Mia Macy, who was denied a job as a result of gender transitioning, ruled that gender identity discrimination is illegal, reports the Washington Blade.
]]> The EEOC panel evaluating the Mia Macy case filed gender identity discrimination under the larger subset of "sex" discrimination which is prohibited under Title VII.In the opinion the EEOC wrote: "[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ..."
The decision is also significant because it was issued by a bipartisan panel. It is important to recognize, however, that the EEOC is an executive body and not the legislative or judicial branch.
Nevertheless, as a result of the EEOC's gender identity position, EEOC field offices (53 in total), will now be able to take claims brought by transgender and gender transitioning individuals. Some of the investigations, no doubt, will turn into potential lawsuits against employers that may have discriminated. Although it should be noted that the EEOC has a detailed procedure for trying to settle a case through mediation before going to trial.
If you are a transgendered person seeking to learn more about the meaning of this ruling, or if you wish to discuss the possibility of opening a potential investigation for perceived discrimination, then you should speak to a qualified local attorney and explain facts in your case.
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Travis Okulski, a male, was at Walmart for two years and had interesting things to say about everything from the very difficult application process (it takes a long time), to the nice lively meeting area (it has good reading material). He also points out that some employees are just not as much into Walmart as the other ones (like him, presumably) and so they may be the reason for the some of the discontent associated with Walmart.
]]> However, those that follow employment law a little bit know that Walmart’s bad press recently has been coming from the fact that it has been viewed as having a major problem with gender discrimination, as previously reported by FindLaw’s Houston Employment Law Blog.While the current gender discrimination suit against Walmart is a class action filed in Texas, an earlier class action was filed at the national level and reached all the way to the Supreme Court. There it was tossed out; but well before the question of whether or not gender discrimination actually occurred, which allowed more cases to be filed subsequently.
In other words, the question of Walmart’s behavior under Title VII is still pending, loving paeans by former employees notwithstanding.
Title VII is the primary federal level vehicle for employees to seek redress from companies that engage in gender discrimination. Title VII also prohibits sex discrimination in on-the-job and apprenticeship programs, retaliation against an employee for opposing a discriminatory employment practice, and sexually stereotyped advertisements for employment positions.
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The four men, who are described in their filings as "Muslims of Arab descent" are named Hussein Chamseddine, Rami Saleh, Brandon Adam, and Chekri "Sam" Bakro. Before being fired they had worked for IHOP anywhere between 12 to 24 years.
]]> They were all fired in less than a year from IHOPs that they managed in Plano, Forth, Arlington, and Burleson, reports Dallas Observer.The Arab-American former managers of Dallas area IHOP restaurants had been hired by John Anthraper, of Anthraper Investments, which owns many IHOPs in the area. The former-managers cite John’s son Alex Anthraper’s harassment regarding their religion and ethnicity and allege that proper termination procedure was not followed. However, the complaint also alleges that John Anthraper made derogatory remarks towards the Muslims of Arab descent as well. The Anthrapers are Indian Christians.
The former IHOP managers filed their lawsuit after getting clearance from the U.S. Equal Employment Opportunity Commission, reports The Dallas Morning News.
Regardless of where this particular case ends up, the EEOC’s so called Charge Processing Procedures that preceded the lawsuit here, are very important for every employee to understand. The charge processing procedure allows a potential employee-victim to have part of the case investigated by the EEOC and then to receive a right to sue letter that would allow the plaintiff to head to court where he or she may ask for damages.
An EEOC’s right to sue letter is not proof that there was discrimination involved, just that there may be a valid case. The employee may then follow up with legal action by a private attorney.
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Thankfully, the U.S. Equal Employment Opportunity Commission is out there to provide guidance to fast food franchises. Some of the lessons you should take away can be found in three recent lawsuits that the EEOC brought against a McDonald’s, a Burger King, and a Wendy’s.
]]> McDonald’s:In the case of the golden arches, the EEOC sued McDonald’s franchises in Arizona and New Mexico. In the case of the Arizona franchise, the EEOC alleged that young female workers were grabbed and sexually harassed by an assistant manager. Other violations included pushing the female workers against a wall while rubbing their shoulders, putting hands in their pockets, and violating their space. Meanwhile, in the case of the New Mexico McDonald’s franchise, the problem was also sexual harassment, but in this case it was same-sex harassment, where a male supervisor allegedly made unwanted requests for sex and unwelcome sexual advances towards young men.
The alleged conduct in both cases violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex (including sexual harassment or pregnancy) and protects employees who complain about such offenses from retaliation.
There has not yet been a resolution to these cases.
Burger King:
The problematic Burger King franchise was in the Pacific Northwest. Once again the issue was related to sexual harassment. The EEOC alleged that a teenaged crew member was pursued by an older married supervisor, who kept asking about the young worker’s virginity, demanded sex, and asked how much she would charge for sex.
The EEOC came in and obtained $150,000 for the young worker.
As can be seen, sexual harassment is clearly an issue at fast food franchises. Using the employment handbook and judicious supervision, you must prevent any sexual harassment from occurring. And when it does occur, you should not retaliate against the employees.
Wendy’s:
The third lesson about employees at fast food franchises comes from a Wendy’s franchise in Dallas, which has been sued by the EEOC for disability discrimination. In this case, the EEOC alleged that a cook had not been retained because he was hearing-impaired. The complainant had worked as a cook at two previous jobs so clearly he was qualified and only his hearing impairment was at issue. The Americans with Disabilities Act (ADA) prohibits disability discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ disabilities as long as this does not pose an undue hardship.
These three cases help any fast food franchise owner to get an idea of what not to do regarding his or her employees. This may take time and training for your managers, but it will be a time and money-saver in the end.
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Nathaniel Claybrooks and Christopher Johnson both believed that they were good, solid, charming contestants, who simply were not given a fair shot at getting picked due to their race. They are alleging that reality show racism led the producers to give more time to white contestants.
]]> Mssrs. Claybrooks and Johnson both believe that their exclusion had to do with race. And both men want to be clear that while they recognize that The Bachelor has had minorities on the show before, what is being identified here is the fact that there have not been any minorities chosen for the main role.Reality show discrimination raises interesting legal questions, the first of which is whether getting an interview for a reality show is in any way similar to getting a job interview. If it is, then some of the analyses applicable to racial discrimination in regular hiring would apply to The Bachelor lawsuit.
Being a reality show star cannot be likened to most other kinds of jobs; but one job it comes close to is being an NFL football head coach. That is another area where white men have been the majority of those that are selected, a result that eventually gave rise to a form of affirmative action rule called the Rooney Rule. Where there is race-based selection, the Equal Employment Opportunity Commission permits affirmative action programs that “overcome the effects of past or present practices, policies, or other barriers to equal employment opportunity.” In effect, you’re allowed to consider color if that helps overcome past discrimination.
In other words, while Nathaniel Claybrooks and Christopher Johnson may not be able to convince a court that they, individually, should have gotten a chance to be The Bachelor, they may be able to create a discussion that highlights the fact that in the however many shows The Bachelor has put on, it has not selected a minority as the lead. Their lawsuit highlights the fact that while there can be a black president, there has not yet been a black bachelor.
If you are applying for a position in an unusual field that has been dominated by individuals from a singular race, you should definitely speak to a local attorney.
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