Dallas Employment Lawyer Blog

What Fox News teaches us about sexual harassment

July 14, 2017 | Adam S. Greenfield

In April, Fox News host Bill O’Reilly was removed from the network due to allegations of sexual harassment. This was just the latest of claims related to sexual harassment that have arisen from the network’s office culture, and the network paid $13 million to settle five claims brought related to O’Reilly starting around 2002. The network’s CEO, Roger Ailes, had been previously removed after over 20 women accused him of sexual harassment and psychological torture over a 20-year period.

One reason O’Reilly lasted so long was that he was extremely popular with viewers. He’d gotten four million viewers on average each night in 2017, and viewers continued to watch in spite of the allegations. Around 50 advertisers eventually pulled out because they didn’t want to be associated with the claims against him, which involved staff and guests being subjected to aggressive sexual advances, verbal abuse, and lewd comments. The staff and guests were ignored when they reported it to management, which is unsurprising because the CEO appears to have also been involved in sexually harassing people.

All the way back in 2002, O’Reilly was observed berating a junior producer, who settled for a small amount. Two years later, another producer sued for sexual harassment on the grounds that O’Reilly had told her inappropriate stories about his sex life, advised her to buy a vibrator, and detailed sex fantasies to her over the phone while masturbating. O’Reilly responded by suing the victim, claiming she was extorting him. They settled for $9 million.

EEOC settles class action against Texas Roadhouse for alleged age discrimination

July 11, 2017 | Adam S. Greenfield

This lawsuit was based on the Age Discrimination in Employment Act (ADEA), which prohibits discrimination. It protects job applicants and employees who are at least 40 years old from age discrimination with regard to hiring, promotion, compensation, terms or conditions of employment, and termination. It’s enforced by the Equal Employment Opportunity Commission (EEOC). Under federal law, there is no age discrimination against employees who are younger than 40 years old.

You may be able to establish an age discrimination case under federal law by proving: (1) you’re a member of a protected class of people ages 40-70, (2) you suffered an adverse employment action, (3) people much younger than you filled the position that you wanted or from which you were terminated, and (4) you were qualified for the job that you were dismissed or rejected from doing. Generally, your age must have been the only reason the employer decided to take an adverse step against you.

If you’re able to establish discrimination under the ADEA, your employer must articulate a valid nondiscriminatory reason for taking the step against you. Sometimes an employer offers one or more valid reasons, the presumption that you were discriminated against is eliminated, and then you’ll need to present evidence that is enough for a fact-finder to decide that the employer’s reasons were a pretext to take the decision that was taken. Often, it’s necessary to conduct discovery to show that there are contradictions or inconsistencies in how the employer acted.

Can women make it in the tech industry?

July 7, 2017 | Adam S. Greenfield

The technology industry is widely known for embracing different and disruptive ways of doing things. Technology leaders often break with tradition and beat their own drum. However, when it comes to hiring women, the technology industry does not have a positive track record. This doesn’t mean that women can’t make it, but it does mean that they will likely face an uphill battle.

Women make up 59% of America’s total workforce but make up only 30% of the workforce in major technology companies. Often, they are put into jobs like marketing or HR. They only hold about 17% of Google technology jobs and 15% of technology jobs at Facebook. Only five of the 41 Fortune 500 companies in the technology sector have a woman CEO. About 40% of women who have an engineering degree don’t wind up in a job or stay long enough to rise in their career.

The problem of sex discrimination in the tech industry has recently been given a lot of play by the media. In April the Silicon Valley company Palantir Technologies agreed to pay $1.6 million to settle charges of hiring discrimination, among other accusations. Palantir is a software company founded in 2004 that specializes in data analysis. Its clients are private companies, law enforcement agencies, and federal government agencies. The company is prohibited by law from discriminating on the basis of race, national origin, color, or sex and is supposed to take steps to affirmatively ensure equal opportunities.

Women are still paid less than men. When will we finally get equal pay for equal work?

June 23, 2017 | Adam S. Greenfield

In spite of overblown claims about post-feminism in the past several years, women continue to be paid less than men over their lifetimes. Often, those trying to fight this fact argue that women might be paid less because they have more responsibility for children or because they don’t negotiate their salaries as well or because they choose lower-paid positions. However, gender bias affects women of all ages, education levels, and races.

According to a study by the American Association of University Women (AAUW), women working full time in the United States are paid just 80% of what men are paid, which is a gap of 20%. The gap is even worse for women of color, although it has narrowed since 1960. Women are only expected to reach pay parity with men in 2059, and then only if progress doesn’t stall as it has since 2001. Recently, progress has stalled, and it is possible women’s salaries won’t be on par with men’s salaries until 2152—not even during the lifetimes of girls born today.

As a result of the gender pay gap, about 14% of adult women under age 65 are living below the federal poverty level, as compared to 11% of men. Meanwhile, 10% of women over retirement age are living below the federal poverty level. The pay gap continues to affect retirees because when women retire, they don’t get as much income from Social Security or pensions because they were paid less during their work years.

Texas non-compete laws are killing Austin’s chances of being the next Silicon Valley

June 20, 2017 | Adam S. Greenfield

Silicon Valley has been successful partially due to employee mobility. California forbids non-compete agreements, and it’s a fundamental policy of the state that any agreement in restraint of competition is to that extent void. There are certain exceptions, such as a person selling the goodwill of a business to a buyer who wants him or her to refrain from carrying on a similar business within a certain geographic area in which the original business has been sold.

However, most non-compete agreements that are enforceable to restrict workers in other states are void in California. Almost one in five employees in America is now subject to a non-compete clause, and many of these employees are in low-paying or blue collar jobs. For example, a well-known case involved the sandwich chain Jimmy John’s, which tried to stop its former franchisees from working for other sandwich makers. As a result, Silicon Valley employees are able to shift tech jobs relatively easily. The result has been substantial innovation.

Researchers have found that non-compete clauses in other states force workers to stay longer in one job, and they earn less than they would in a state like California, or in a country like Israel, which is also hostile to non-compete agreements. Although firms may invest more in research and development if their investment is protected by a non-compete clause, a worker who is locked into a particular company invests less in self-training, and this affects what the worker produces and creates. Ultimately, non-compete clauses chill innovation more than they help it.

When your boss is a racist

June 16, 2017 | Adam S. Greenfield

Federal and Texas laws prohibit discriminating on the basis of race. If your boss is a racist who takes an adverse employment action against you because of your race, you may have grounds to file a lawsuit. The primary federal law that prohibits workplace race discrimination is Title VII of the Civil Rights Act of 1964. This law applies to private employers that employ 15 or more employees.

Texas Labor Code Chapter 21 also prohibits race discrimination. Under this law, an employer cannot base its employment decisions on its assumptions or stereotypes about the performance of certain races, or on a job applicant or employee’s association with individuals of particular races, membership in ethnic-based organizations, or participation in schools or houses of worship associated with specific minority groups. They aren’t permitted to isolate or segregate employees of certain races from customer contact, exclude them from certain positions or regions, or code applications to designate race for the purpose of excluding them from particular positions.

If your boss is racist, and you believe he or she is making employment decisions based on race, you may eventually need to file a charge or lawsuit. You will need proof in order to successfully prevail on your claim. You should record incidents of abusive behavior or racism immediately after they occur and keep your notes in a place that others cannot access. In your entry, you should note the date and time and describe what happened.

How forced arbitration denies workers their civil rights in Texas and nationwide

June 13, 2017 | Adam S. Greenfield

Arbitration occurs when a private tribunal, rather than a court, adjudicates a particular issue. Usually, the rules in arbitration are more relaxed than they are in civil litigation, but different tribunals or arbitration service providers have different procedures that can be very close to or very different from court procedures. Sometimes corporate employers force workers to agree to arbitrate their disputes based on a clause in their employment agreement. A worker is then forced to agree to arbitrate any employment issue if they want to be employed by the employer.

The judicial system, and in particular the United States Supreme Court, has enabled corporations to force their employees into arbitration to adjudicate all types of legal violations, including those related to employment discrimination and wage and hour disputes. This means that corporations have the power to write rules and design the procedures that apply to them in case they discriminate against their employees or fail to pay them their wages properly under law. Forced arbitration, as ratified by the judiciary, denies workers their right to bring a lawsuit against an employer for serious legal violations and have the dispute judged by a jury.

This is important because employees win less often in arbitration than in court. When they do win, they receive lower damages awards. Some arbitration clauses even require the losing party to pay the arbitration fees, including their employer’s attorneys’ fees. This deters workers from bringing their claims and exercising their rights.

How budget cuts affect the EEOC

June 9, 2017 | Adam S. Greenfield

President Trump’s budget adversely affects the Equal Employment Opportunity Commission (EEOC) and other agencies essential to workers’ rights. It asks for the elimination of 249 full-time positions at the EEOC as compared to 2016.

The EEOC enforces numerous federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination against employees on the basis of national origin, race, color, sex, or religion. When an employee brings a charge of discrimination, harassment, or retaliation to the EEOC, the EEOC can investigate it and determine whether there’s reasonable cause to believe there’s been discrimination. Both the employee and the organization are supposed to provide information, which is evaluated by the investigator to make a recommendation about whether there is a reasonable basis for believing there’s been unlawful discrimination.

When the EEOC can’t conclude there’s been discrimination, the employee is told he or she can sue in federal court within 90 days. However, if the EEOC finds there’s reason to believe there’s been discrimination, it may invite the parties to conciliation, and if that fails, the EEOC files a federal lawsuit.

When sexual harassment is about power, not sex

June 2, 2017 | Adam S. Greenfield

One in three women report being sexually harassed on the job in America. People started taking sexual harassment seriously when Anita Hill accused Justice Clarence Thomas of sexual harassment a little more than two decades ago, but only 3% of women who are sexually harassed file a formal complaint because although they want to leave, they need the income from their jobs.

Many people assume that sexual harassment is a result of a man’s sexual interest in a female employee. It’s often assumed that the man is inept or awkward or that the woman is lying or exaggerating. However, most sexual harassment is actually about power, rather than sex. Only about a quarter of sexual harassment cases are simply seductions gone awry, and very few are quid pro quo harassment cases, in which the man asks for a sexual favor in exchange for a promotion or for not firing the woman.

Sexual harassment is a way to keep women in their place and devalue a woman’s contribution in the workplace. Calling attention to a female worker’s sexuality is a way for someone with greater power to make her vulnerable. Often, women who are sexually harassed blame themselves. Most of the time, the people doing the harassing are men, but sometimes women in positions of power are accused of sexual harassment as well.

Gay and Lesbian discrimination in Texas: which options does a worker have?

May 26, 2017 | Adam S. Greenfield

About 429,000 workers who identify as lesbian, gay, bisexual, or transgender live in Texas. According to the Williams Institute, there are about 666,000 LGBT adults in the state, including those working. Discrimination against LGBT employees is prevalent in Texas and across the country, with about 21% of those LGBT employees responding to a 2013 national survey that they’d been treated unfairly by an employer in terms of their hiring, pay, or promotions.

The same or even more discrimination in the workplace has been reported by transgender people. About 79% of respondents from Texas in the largest survey of transgender workers to date reported they’d experienced mistreatment on the job. The discrimination extends to disparity in pay. The median income of men in same sex couples in Texas has been reported as 9% less than the median income of men in opposite sex marriages.

Unfortunately, Texas doesn’t have a state law that explicitly protects these workers from discrimination based on their sexual orientation or gender identity. There are four cities that do provide protection in the form of ordinances against gender identity and sexual orientation discrimination in public and private sector jobs. Seven more cities protect their own local government workers from discrimination on these grounds. Still, that leaves about 86% of Texas employees without any state or local protection for being gay, lesbian, bisexual, or transgender. Therefore, remedies for workers who face discrimination on these grounds are limited.